Thomas P. and Ermina A. Krukowski - Page 48




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          1988 and 1989 temporary regulations; the 1994 final regulations,              
          although different from the temporary and proposed regulations,               
          were therefore valid.  However, taxpayers could not have                      
          concluded, on the basis of the silence of the 1992 proposed                   
          regulations, that the Commissioner had in fact changed that rule.             
               Our cases interpreting another large and detailed set of                 
          legislative regulations-–the consolidated return regulations–-                
          provide another example of how the standards of fairness instruct             
          us to interpret the Commissioner’s silence in the case at hand.               
          We have held that the Commissioner is bound by the consequences               
          flowing from the silence (or the express terms) of the                        
          consolidated return regulations, even when those consequences are             
          arguably at odds with larger tax principles or the statute as a               
          whole.  See Woods Inv. Co. v. Commissioner, 85 T.C. 274 (1985)                
          (literal application of consolidated return regulations binding,              
          even though result was allegedly a double deduction for the                   
          taxpayer); Gottesman & Co. v. Commissioner, 77 T.C. 1149 (1981)               
          (refusal to “fill in the gaps” regarding imposition of                        
          accumulated earnings tax on corporations filing consolidated                  
          returns).                                                                     
               Our opinion in Gottesman & Co. v. Commissioner, supra, is                
          particularly instructive.  Gottesman & Co. also considered the                
          effect of the Commissioner’s silence, following the withdrawal of             
          regulations favorable to the taxpayer.  In Gottesman & Co., we                
          considered whether the taxpayer (the common parent of an                      




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