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two regulations are consistent with each other, and neither
regulation clearly answers the question we face.
“Plain meaning” contentions notwithstanding, we cannot
properly lay the findings of fact next to the statute or
regulations and just read off the answers to the questions here
presented.18
Given that petitioners failed to consider the “by such
corporation” language of section 1.954-3(a)(4)(i), Income Tax
Regs., and that respondent failed to consider the reality that a
corporation engages others to do things on its behalf, we cannot
conclude with the requisite degree of certainty that the factual
record presented herein is sufficient. The shortcomings of the
parties’ legal contentions noted above make it far from clear
that all of the material facts have even been presented, let
alone that there is not a genuine issue with respect thereto.
Accordingly, even though we cannot agree with respondent’s
analysis, we conclude that petitioners have failed to carry their
obligation as movants to show that there is no substantial
18See, e.g., the following description of a court’s role in
certain “simple” litigation:
When an act of Congress is appropriately challenged in the
courts as not conforming to the constitutional mandate the
judicial branch of the Government has only one duty,--to lay
the article of the Constitution which is invoked beside the
statute which is challenged and to decide whether the latter
squares with the former. * * * [United States v. Butler, 297
U.S. 1, 62 (1936).]
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