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When an agency’s interpretation of a particular statutory
provision does not qualify for Chevron deference, it still may
merit some deference pursuant to Skidmore v. Swift & Co., 323
U.S. 134 (1944). United States v. Mead Corp., supra at 234-235,
237. Pursuant to Skidmore, the agency’s interpretation would be
accorded respect proportional to its “power to persuade”. Id. at
235.
II. Chronology of the Case Law Pre-Mead
A. Miller--Eighth Circuit
The U.S. Court of Appeals for the Eighth Circuit was the
first Court of Appeals to address the validity of the 9T
regulation. Miller v. United States, 65 F.3d 687 (8th Cir.
1995). The Court of Appeals for the Eighth Circuit relied on
Chevron to determine the validity of the 9T regulation. Id. at
689. The court did not state that section 163(h)(2)(A) was
ambiguous; instead, it concluded that Congress failed to define
what constitutes “business interest”2 in the statute, and this
was an implicit legislative delegation of authority to the
Commissioner. Id. at 690. But see Judge Swift’s dissent p. 104.
The court then relied on The General Explanation of the Tax
Reform Act of 1986 (Blue Book) issued by the staff of the Joint
Committee on Taxation to conclude that the 9T regulation was a
permissible construction of the statute. Id. at 690-691.
2 It is unclear why the court chose to focus on “business
interest” rather than “personal interest”.
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