- 29 - had been previously rejected by three U.S. Courts of Appeals, by this Court (upon reconsideration of a decision that had been reversed on appeal), and by “several” U.S. District Courts. The Court of Appeals stated that it had been unable to “find a single published opinion supporting the Commissioner’s position.” Allbritton v. Commissioner, id. at 184. In Estate of Perry v. Commissioner, supra at 1046, the Commissioner had lost “identical appeals in two other circuits”, and the Court of Appeals for the Fifth Circuit rejected the Commissioner’s argument that a contrary decision by that same court justified his litigating position merely because that decision had not been specifically overruled. The Court of Appeals noted that, in the context of an amendment to the Code, “the clear and unequivocal language of which unmistakably overrules” its earlier decision, “the absence of a new decision * * * does not equate with unsettled law or first impression”. Id. Unlike the circumstances present in Allbritton and Estate of Perry, respondent in the consolidated cases can point to numerous cases that reasonably support his litigating position. We conclude that the decisions of the Courts of Appeals in PNC Bancorp, Inc. v. Commissioner, supra, and Wells Fargo & Co. and Subs. v. Commissioner, supra, did not preclude respondent’s reliance on inconsistent Supreme Court, Courts of Appeals, Court of Claims, and Tax Court authority (buttressed in May 2001, byPage: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 Next
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