Thomas P. and Ermina A. Krukowski - Page 43




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          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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