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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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