- 43 -
was a clarification. See T.D. 8565, 1994-2 C.B. 81, 59 Fed. Reg.
50485 (Oct. 4, 1994), at “Supplementary Information: Explanation
of Provisions; II. Public Comments”. Under the circumstances of
this case, however, there is no reason to give the Commissioner’s
retrospective rationalization contained in the preamble to the
1994 final regulations any more interpretative weight than
respondent’s litigating position.
Of course, a preamble may be used as an aid in interpreting
the regulation it accompanies. See Armco, Inc. v. Commissioner,
87 T.C. 865, 868 (1986). But the case at hand concerns the
meaning of the 1992 proposed regulations, not the meaning of the
1994 final regulations. The 1994 preamble was not a
contemporaneous interpretation of the 1992 regulations in issue.
As a retrospective rationalization, it’s entitled to little or no
interpretative weight. See id. at 868, where we stated:
The proper interpretation of a regulation as a matter
of law is a responsibility that ultimately rests with
the courts. In exercising its judicial function, the
court may be aided by the views of the drafters on the
intended meaning of the language, but to be accorded
any weight, those views cannot be post hoc * * * .
More importantly, the preamble’s statement that the language
added to the 1992 proposed regulations’ activity definition by
the 1994 final regulations was only a clarification simply does
not withstand scrutiny. According to the preamble, the new
language clarified a “grouping” rule contained in the 1992
proposed regulations, by explaining that a taxpayer could group
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