- 40 -
In those cases, however, the grant of regulatory authority was
not similar to section 931(d)(2)’s mandate, and the statute’s
ambit was not as dependent on the promulgation of regulations.
In addition, the Court was not asked to interpret the statute’s
most integral term without sufficient guidance regarding
Congress’ intent.
In Alexander v. Commissioner, supra at 473, we held that a
statute was not applicable because the Secretary had failed to
promulgate regulations. We concluded:
Section 465(c)(3)(D) unambiguously provides that
section 465(b)(3) “shall apply only to the extent
provided in regulations prescribed by the Secretary,”
to an activity described in section 465(c)(3)(A).
Regulations have not been prescribed by the Secretary.
Accordingly, we hold that section 465(b)(3) does not
apply to the activities of the limited partnerships.
Id.
We chose not to exercise our independent judgment because
Congress gave the Secretary, and only the Secretary, the
authority to prescribe the applicable rules.
In Schwalbach, Intl. Multifoods, Estate of Neumann,1 and H
1 In Estate of Neumann v. Commissioner, 106 T.C. 216, 219
(1996), the Court set forth the “whether versus how” test. The
Court stated that:
we are called upon to resolve the following question:
Are the regulations a necessary condition to
determining “whether” the GST tax applies * * * or do
they constitute only a means of arriving at “how” that
tax, otherwise imposed by the statute, should be
determined * * *. Id.
(continued...)
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