- 46 - 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).Page: Previous 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 Next
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