- 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, by
Page: Previous 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 NextLast modified: May 25, 2011