- 39 -
it would have specifically done so. See, e.g., Central Bank v.
First Interstate Bank, 511 U.S. 164, 184-188 (1994); United States
v. Riverside Bayview Homes, Inc., 474 U.S. 121, 137 (1985).
Congress’ inaction reflects its intent not to grant export property
treatment to computer software copyrights. The temporary regulation
followed Congress’ lead.
(3) Congress was aware of the temporary regulation, its
treatment of computer software, and the debate thereon. Congress
had the opportunity to amend the statute in light of the temporary
regulation. See Perkin-Elmer Corp. & Subs. v. Commissioner, 103
T.C. 464, 480 (1994). But it did not do so, and the inference of
congressional approval is strong when legislative history contains
some indication that Congress was aware of and approved the
administrative construction. See Central Bank v. First Interstate
Bank, supra at 184-188.
(4) The Commissioner has consistently denied export property
treatment for computer software when accompanied by the right to
reproduce outside the United States. As early as the comment period
leading up to the issuance of section 1.993-3(f)(3), Income Tax
Regs., and the accompanying technical memorandum, see supra note 6,
software industry representatives sought a regulation that would
include computer software in the parenthetical. The Commissioner
considered but rejected the industry’s position, as evidenced by the
omission of computer software from section 1.993-3(f)(3), Income Tax
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