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presume a delegation of power based solely on the fact that there
was not an express withholding of such power. Mich. v. EPA, 268
F.3d 1075, 1082 & n.2 (D.C. Cir. 2001).
The fact that a court pre-Mead found the agency’s position
to be reasonable under the Chevron standard is insufficient;
after Mead, if Chevron is inapplicable the agency’s position must
be persuasive. Matz v. Household Intl. Tax Reduction Inv. Plan,
supra at 573-575 (applying this rule to the IRS). It is “plain
error for [courts] to rely on” Chevron in determining what
deference to give agency actions without considering Mead. Am.
Fedn. of Govt. Employees, AFL-CIO v. Veneman, 284 F.3d 125, 129
(D.C. Cir. 2002). To the extent decisions using a pre-Mead
analysis differ from the analysis set forth in Mead, Mead
controls. Hall v. U.S. EPA, 273 F.3d 1146, 1156 n.6 (9th Cir.
2001).
IV. Applying Mead to This Case
I note that “Chevron has had a checkered career in the tax
arena.” Cent. Pa. Sav. Association v. Commissioner, 104 T.C.
384, 391 (1995). “The degree to which courts are bound by agency
interpretations of law has been like quicksand. The standard
seems to have been constantly shifting, steadily sinking, and,
from the perspective of the intermediate appellate courts,
frustrating.” Wolpaw v. Commissioner, 47 F.3d 787, 790 (6th Cir.
1995), revg. T.C. Memo. 1993-322.
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