Electronic Arts, Inc. and Subsidiaries - Page 83




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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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