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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...)
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