Edward A. Robinson III and Diana R. Robinson - Page 37




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          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,               




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