Edward A. Robinson III and Diana R. Robinson - Page 33




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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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