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to the deductibility of income tax deficiency interest relating
to an individual’s trade or business (see cases cited infra
note 7) are the only historical “angles” that would support the
per se disallowance rule of section 1.163-9T(b)(2)(i)(A),
Temporary Income Tax Regs., supra. That being the case, Chevron
type deference is hardly appropriate.
Of the Courts of Appeals that have addressed the issue
before us, two inappropriately treat section 1.163-
9T(b)(2)(i)(A), Temporary Income Tax Regs., supra, as a
legislative regulation. See Redlark v. Commissioner, 141 F.3d
936, 940 (9th Cir. 1998); Miller v. United States, 65 F.3d 687,
690 (8th Cir. 1995). To the contrary, where it so intends,
Congress knows how to specifically delegate legislative
regulatory authority with regard to tax legislation, and nowhere
in section 163(h) do we find such a delegation. For examples of
such specific delegation of legislative authority within just the
other subsections of section 163, see section 163(f)(2)(C)
(involving interest expense on certain types of obligations that
are not in registered form); section 163(i)(5) (involving
interest expense on certain types of corporate debt instruments
with substantial original issue discount); and section 163(l)(5)
(involving interest expense on certain types of corporate
indebtedness payable in the equity of the debtor).
Although upholding it, the Court of Appeals for the Seventh
Circuit noted its concern with regard to the deference to be
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