- 47 -
the top-to-bottom review we have found required by National
Muffler and the two-part test of Chevron will usually lead to the
same result.5
Under both these standards, we start by deciding whether the
words of section 1433(b)(2)(A) have a plain meaning. As the
Supreme Court described step one of the analysis in Chevron, “If
the intent of Congress is clear, that is the end of the matter;
for the court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Chevron, 467 U.S.
at 842-43. As I noted in Swallows, 126 T.C. at 164 n.7 (Holmes,
J., dissenting), there is a controversy over whether courts
should only look to the text and structure of the statute in
deciding whether a statute is ambiguous, Natl. R.R. Passenger
Corp. v. Boston & Me. Corp., 503 U.S. 407, 417 (1992) (citations
omitted), or whether they should also investigate the legislative
history in this first step, Chevron, 467 U.S. at 842-843.6
However, that controversy isn’t relevant to this case: The
majority opinion and the carefully drawn concurrences of Judges
Swift and Thornton show the ambiguity of the phrase “generation-
skipping transfer under a trust,” and Judge Thornton’s shows as
5 See Swallows, 126 T.C. at 173-174 (Holmes, J.,
dissenting).
6 The Sixth Circuit does look at legislative history in step
one. See Hospital Corp., 348 F.3d at 143; Peoples Federal S&L,
948 F.2d at 299.
Page: Previous 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 NextLast modified: May 25, 2011