- 16 - and cigarettes might appear to fall within the statutory definitions of “drug” and “combination product” when such definitions were considered in isolation, consideration of the statute as a whole and in the context of other enactments revealed items that conflicted with any grant of jurisdiction in the Act to the FDA to regulate tobacco. In view of the refinements of the Chevron doctrine in Brown & Williamson, we believe our opinion in Tate & Lyle I may have given insufficient attention to fitting all parts of section 267(a) into “an harmonious whole”. If, as we held in Tate & Lyle I, section 267(a)(3) authorizes only regulations that address mismatches resulting from the payee’s method of accounting, then it would appear that section 267(a)(3) is redundant in relation to section 267(a)(2), as the Court of Appeals for the Third Circuit reasoned. That is because section 267(a)(2) would already reach, and implicitly authorize regulations covering, payments owed to a related foreign person with a (U.S.) method of accounting for such payments. Moreover, as in Brown & Williamson, there was a time gap between the enactment of section 267(a)(2) and (a)(3), the latter provision being enacted some 2 years after the former.5 The subsequent enactment of 267(a)(3) 5 Sec. 267(a)(2) was amended in 1984 to the form in effect in the years in issue. Deficit Reduction Act of 1984, Pub. L. 98-369, sec. 174(a), 98 Stat. 704. Sec. 267(a)(3) was added to the Code in 1986. Tax Reform Act of 1986, Pub. L. 99-514, sec. (continued...)Page: Previous 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Next
Last modified: May 25, 2011