Penny J. Sutherland - Page 16




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         United States v. Darusmont, 449 U.S. at 296.  “This ‘customary               
         congressional practice’ generally has been ‘confined to short and            
         limited periods required by the practicalities of producing national         
         legislation.’”  United States v. Carlton, supra at 32-33 (quoting            
         United States v. Darusmont, supra at 296-297).  The retroactive              
         period generally must be “modest” and not excessive. See United              
         States v. Carlton, supra; see also United States v. Hemme, 476 U.S.          
         558, 562 (1986).  Nevertheless, neither the Supreme Court nor the            
         Courts of Appeals have applied “an absolute temporal limitation” on          
         the periods affected by retroactive legislation for the legislation          
         to withstand a constitutional challenge.  See Temple University v.           
         United States, 769 F.2d at 135.  “There is nothing intrinsic in the          
         ‘harsh and oppressive’ test * * * that requires a one-year bench             
         mark as the constitutional limit of retroactivity.”  Canisius                
         College v. United States, supra at 26; see also Wiggins v.                   
         Commissioner, 904 F.2d at 316.   Instead, we review tax legislation          
         case by case, considering “‘the nature of the tax and the                    
         circumstances in which it is laid’”.  Canisius College v. United             
         States, supra at 27 (quoting Welch v. Henry, 305 U.S. at 147).               
              Generally, in those cases where retroactive application was             
         allowed, courts have found the period of retroactivity to be modest.         
         See, e.g., United States v. Carlton, supra (upholding 14-month               
         retroactive application); United States v. Darusmont, supra                  
         (upholding retroactive application within calendar year of 10                







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