Sandra G. Venable - Page 11

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               Our conclusion that application of the amended version of              
          section 104 is permissible rests on two principal considerations.           
          First, to the extent that the test of Landgraf v. USI Film                  
          Prods., supra, is pertinent in the context of tax legislation, a            
          point we do not reach, the rubric set forth therein supports                
          application of the revised statute.  Second, application of                 
          amended section 104 is likewise consistent with the standard for            
          retroactivity of tax laws expressly described in United States v.           
          Carlton, 512 U.S. 26 (1994).                                                
               In Landgraf v. USI Film Prods., supra at 280, the Supreme              
          Court stated the following rule:                                            
                    When a case implicates a federal statute enacted                  
               after the events in suit, the court’s first task is to                 
               determine whether Congress has expressly prescribed the                
               statute’s proper reach.  If Congress has done so, of                   
               course, there is no need to resort to judicial default                 
               rules.  When, however, the statute contains no such                    
               express command, the court must determine whether the                  
               new statute would have retroactive effect, i.e.,                       
               whether it would impair rights a party possessed when                  
               he acted, increase a party’s liability for past                        
               conduct, or impose new duties with respect to                          
               transactions already completed.  If the statute would                  
               operate retroactively, our traditional presumption                     
               teaches that it does not govern absent clear                           
               congressional intent favoring such a result.                           
               Hence, the threshold question is whether Congress expressly            
          provided that the disputed statute should apply retroactively or            
          prospectively.  In the words of the Court of Appeals for the                
          Fifth Circuit, to which appeal in the instant case would normally           
          lie, “we must first determine whether Congress has clearly                  






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