- 44 -
draw two negative inferences: First, that the transitional rule
was not meant to apply to a limited power of appointment that ran
afoul of the vesting requirements; and second, and of more
relevance here, that the transitional rule was not meant to apply
to the exercise of a general power of appointment under an
otherwise grandfathered trust.
In short, giving effect to all its terms and considering its
origin and purpose, the transitional rule has a meaning
sufficiently plain as to erase any doubt as to the validity of
the disputed regulations.5 Insofar as the statute might be
thought to be ambiguous, to that extent it might be said to have
4(...continued)
and Ranking Member of the Senate Committee on Finance and the
Chairman of the House Committee on Ways and Means. See 132 Cong.
Rec. S13952 (daily ed. Sept. 26, 1986) (colloquy between Senate
Committee on Finance Chairman Packwood and the ranking Member
Sen. Bentsen); 132 Cong. Rec. H8362 (daily ed. Sept. 25, 1986)
(colloquy between House Committee on Ways and Means Chairman
Rostenkowski and House Committee on Ways and Means Member Rep.
Andrews).
5 I agree with the conclusion, see majority op. p. 22, that
the Supreme Court’s statement in Natl. Cable & Telecomm.
Association v. Brand X Internet Servs., 545 U.S. 967 (2005),
regarding the circumstances in which a “prior judicial
construction” might trump an “agency construction otherwise
entitled to Chevron deference”, does not compel us to hold that
the disputed regulations are invalid in the wake of Simpson v.
United States, 183 F.3d 812 (8th Cir. 1999), or Bachler v. United
States, 281 F.3d 1078 (2002). Under the rule of Golsen v.
Commissioner, 54 T.C. 742, 757 (1970), affd. 445 F.2d 985 (10th
Cir. 1971), this Court is not required to follow Simpson and
Bachler in this case, which is not appealable to either of the
circuits in which those cases arose. In any event, Simpson and
Bachler did not address the validity of the disputed regulations.
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