Dover Corporation and Subsidiaries - Page 47

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          particular Code provisions”, respondent was, of course, free to             
          amend his regulations to require a minimum period of continuous             
          operation of a foreign disregarded entity’s business, prior to              
          the disposition of that business, as a condition precedent to               
          treating the owner as having been engaged in the trade or                   
          business for purposes of characterizing the gain or loss.  But,             
          in the absence of respondent’s exercise of that authority, we               
          must apply the regulation as written.  See Exxon Corp. v. United            
          States, 88 F.3d 968, 974-975 (Fed. Cir. 1996); Woods Inv. Co. v.            
          Commissioner, 85 T.C. 274, 282 (1985); Henry C. Beck Builders,              
          Inc. v. Commissioner, 41 T.C. 616, 628 (1964).  As we observed in           
          sustaining the application of a provision of the consolidated               
          return regulations, the fact that the regulation gives rise to a            
          perceived abuse is “a problem of respondent’s own making”, a                
          problem that respondent has allowed to persist by choosing “not             
          to amend the regulations to correct the problem.”  CSI                      
          Hydrostatic Testers, Inc. v. Commissioner, 103 T.C. 398, 411                
          (1994), affd. 62 F.3d 136 (5th Cir. 1995).21                                


               21  Respondent did include an allegedly corrective amendment           
          as part of proposed regulations issued on Nov. 29, 1999.  See               
          REG-110385-99, 64 Fed. Reg. 66591 (Nov. 29, 1999).  The proposed            
          regulations contained a special rule for foreign disregarded                
          entities used in a so-called extraordinary transaction, one of              
          which constitutes the sale of a 10-percent or greater interest in           
          such an entity within 12 months of the entity’s change in                   
          classification from association taxable as a corporation to                 
          disregarded entity.  Under those circumstances, the proposed                
          regulations provided that the disregarded entity “will instead be           
                                                             (continued...)           




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