- 124 - staff summary (even though the conference committee chose to adopt language less restrictive than the staff summary) and on the Blue Book (even though the Blue Book goes far beyond the language of the conference committee report to insert ideas from the staff summary that it previously suggested to the conference committee, but which the conference committee rejected and even though the Blue Book was published during the 100th Congress while TRA 1986 was enacted during the 99th Congress). Majority op. pp. 17-18, 35. For the reasons stated in Judge Thornton’s concurring opinion, our opinion in Redlark, and Judge Laro’s concurring opinion in Redlark, I find this reliance unpersuasive. See also Judge Swift’s dissent p. 108. The majority acknowledges that section 163(h)(2)(A) does not compel the result contained in the 9T regulation but relies on the Joint Committee staff summary and Blue Book to conclude the 9T regulation is a permissible construction. Majority op. pp. 47-52. This would be a slender reed on which to conclude that the 9T regulation has the power to persuade and is entitled to deference under Skidmore v. Swift & Co., supra, especially in light of the acknowledgment that a reasonable interpretation of section 163(h)(2)(A) is that income tax deficiency interest attributable to nonemployee trade or business income should properly be considered allocable to a trade or business and that the pre-TRA 1986 case law also supports this conclusion. Kikalos v. Commissioner, 190 F.3d at 797-798; Redlark v. Commissioner,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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