- 120 - 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.Page: Previous 106 107 108 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 Next
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