Microsoft Corporation - Page 39




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         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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