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467 U.S. 837, 843-844 (1984) (holding that where Congress has
explicitly left a gap for the agency to fill, there is an express
delegation of authority to the agency to elucidate a specific
provision of the statute by regulation, and such regulations are
legislative). Indeed, the determination whether income is
“derived from sources within [American Samoa]” or “effectively
connected with the conduct of a trade or business * * * within
[American Samoa]” is the crux of the statute. Sec. 931(a). Such
determination can be accomplished in a variety of ways, and this
Court cannot divine what rules the Secretary would promulgate.
Moreover, our role is to interpret, not make, the law.
The statute states that the determination of whether income is
effectively connected “shall be made under regulations prescribed
by the Secretary.” Sec. 931(d)(2). The majority imply that such
language is ambiguous, and that the Court, and presumably
taxpayers, may look to any regulation if the Code does not specify
the section under which the regulations must be drafted. Majority
op. p. 13. The above-referenced language is commonly used in
statutes. Respondent and tax practitioners will certainly find
creative uses for this sophistic line of analysis.
The majority’s analysis eventually shifts to section 864.
Application of that statute does not work, however, because section
864 was intended to determine whether income of a nonresident alien
is effectively connected to the United States. Sec. 864(c)(1). In
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