Edward A. Robinson III and Diana R. Robinson - Page 32




                                       - 12 -                                         
               The Courts of Appeals uniformly relied on the following                
          rationale to support their conclusions that section 1.163-                  
          9T(b)(2)(i)(A), Temporary Income Tax Regs., supra, is not                   
          invalid: (1) The regulation is not inconsistent with either the             
          statute or its legislative history, and (2) the regulation is               
          supported by the Staff of the Joint Committee on Taxation,                  
          General Explanation of the Tax Reform Act of 1986 (J. Comm. Print           
          1987), hereinafter referred to as the 1986 Blue Book.  Kikalos v.           
          Commissioner, 190 F.3d at 798; McDonnell v. United States, 180              
          F.3d at 723 (adopting the rationale of Redlark v. Commissioner,             
          141 F.3d at 936); Allen v. United States, 173 F.3d at 537-538;              
          Redlark v. Commissioner, 141 F.3d at 941; Miller v. United                  
          States, 65 F.3d at 690.                                                     
               Although the judicial landscape surrounding section                    
          163(h)(2)(A) has changed significantly since our decisions in               
          Redlark v. Commissioner, supra, and Kikalos v. Commissioner,                
          supra, the legislative landscape has not.  Since section 1.163-             
          9T(b)(2)(i)(A), Temporary Income Tax Regs., supra, was published            
          in the Federal Register, Congress has not amended section                   
          163(h)(2)(A) so as to compel a construction of section                      
          163(h)(2)(A) contrary to the Secretary’s construction as embodied           



               7(...continued)                                                        
          Commissioner, 190 F.3d 791, 794 (7th Cir. 1999), revg. T.C. Memo.           
          1998-92), none of the cited Court of Appeals opinions                       
          specifically discussed the validity of this regulation.                     





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