Estate of Eleanor R. Gerson, Deceased, Allan D. Kleinman, Executor - Page 46

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               HOLMES, J., concurring:  The issue before the court is                 
          simply this--is the regulation a reasonable interpretation of the           
          statute?  I concur with the result that the majority reaches and            
          with their analysis of the disputed regulation’s validity under             
          National Muffler.1                                                          
               I write separately because the Sixth Circuit--the circuit to           
          which any appeal of this case is headed--has expressly adopted              
          Chevron2 deference for tax regulations, like the one here, that             
          are issued under section 7805's general authority.3  In Swallows,4          
          the Court aired its differences on deference under National                 
          Muffler versus deference under Chevron.  Swallows is now on                 
          appeal, but I recognize that the majority is constrained to use             
          National Muffler review unless there would be a practical                   
          certainty of reversal.  See Golsen v. Commissioner, 54 T.C. 742,            
          757 (1970), affd. 445 F.2d 985 (10th Cir. 1971).  That practical            
          certainty isn’t present here because, as is usually the case,               
          whether a regulation is valid doesn’t depend on the standard:               


               1  Natl. Muffler Dealers Assn. v. United States, 440 U.S.              
          472 (1979).                                                                 
               2 Chevron U.S.A., Inc., v. Natural Res. Def. Council, Inc.,            
          467 U.S. 837 (1984).                                                        
               3 See Hosp. Corp. of Am. & Subs. v. Commissioner, 107 T.C.             
          73 (1996), affd. 348 F.3d 136, 140-141 (6th Cir. 2003); Peoples             
          Fed. Sav. & Loan Assn. v. Commissioner, T.C. Memo. 1990-129,                
          revd. 948 F.2d 289, 299-300 (6th Cir. 1991).                                
               4 Swallows Holding, Ltd. v. Commissioner, 126 T.C. 96, on              
          appeal (3d Cir., filed July 5, 2006).                                       




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