Edward A. Robinson III and Diana R. Robinson - Page 34




                                       - 121 -                                         
               We have previously avoided, pre-Mead, the question of                   
          whether temporary regulations promulgated without notice-and-                
          comment procedures are entitled to Chevron deference.                        
          UnionBanCal Corp. v. Commissioner, 113 T.C. 309, 316-317 (1999).             
          We also have previously questioned, pre-Mead, whether                        
          Chevron applies to interpretive regulations.  Cent. Pa. Sav.                 
          Association v. Commissioner, supra at 391 (citing E.I. duPont de             
          Nemours & Co. v. Commissioner, 41 F.3d 130 (3d Cir. 1994), affg.             
          102 T.C. 1 (1994)).  The question of what deference interpretive             
          regulations, including temporary regulations issued without                  
          notice-and-comment procedures, are entitled needs to be answered             
          in light of Mead.                                                            
               The first question in the Mead analysis is whether Congress             
          delegated authority to the agency to make rules carrying the                 
          force and effect of law.  United States v. Mead Corp., supra at              
          226-227; Pool Co. v. Cooper, supra at 177 n.3.  The second                   
          question is whether the agency invoked that authority.  United               
          States v. Mead Corp., supra; Pool Co. v. Cooper, supra.  In this             
          case, however, even assuming that we were to answer the first                
          question in the affirmative, we must answer the second question--            
          whether the agency invoked the authority delegated--in the                   
          negative for the reasons set forth below.                                    
               Regulations are either legislative or interpretive in                   
          character.  Tutor-Saliba Corp. v. Commissioner, 115 T.C. 1, 7                
          (2000).  Interpretive regulations are promulgated under the                  




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

Last modified: May 25, 2011