Estate of Eleanor R. Gerson, Deceased, Allan D. Kleinman, Executor - Page 50

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               LARO, J., dissenting:  The Court’s opinion concludes supra             
          p. 29 that respondent’s interpretation of section 1433(b)(2)(A)             
          of the Tax Reform Act of 1986 (TRA 1986), Pub. L. 99-514, 100               
          Stat. 2731, “is a reasonable and valid interpretation of the                
          plain language of TRA 1986 section 1433(b)(2)(A)”.  Because I               
          disagree, I dissent.1  As the Courts of Appeals for the Eighth and          
          Ninth Circuits held in Simpson v. United States, 183 F.3d 812               
          (8th Cir. 1999), and Bachler v. United States, 281 F.3d 1078 (9th           
          Cir. 2002), factual settings that the Court’s opinion supra pp.             
          15 and 17 acknowledges are “nearly identical” to the factual                
          setting at hand, the plain reading of TRA 1986 section                      
          1433(b)(2)(A) leads to a conclusion contrary to that expressed in           
          the Court’s opinion.  The conclusion in the Court’s opinion is              


               1 Following a prior judicial decision rejecting respondent’s           
          interpretation of TRA 1986 sec. 1433(b)(2)(A) as inconsistent               
          with the plain reading of that section, respondent caused his               
          interpretation to be prescribed in sec. 26.2601-1(b)(1)(i), GST             
          Tax Regs.  The Court’s opinion supra p. 21 frames this case as “a           
          question of first impression concerning the validity of section             
          26.2601-1(b)(1)(i), GST Tax Regs.”  I view this case differently.           
          In a case such as this, where the question involves an                      
          “interpretation of the plain language” of a statute, respondent’s           
          interpretation of that language is not entitled to any greater              
          respect simply because respondent has bootstrapped his                      
          interpretation by causing it to be prescribed in a regulation.              
          The judiciary, and not respondent (or the Secretary), is the                
          final authority on the plain meaning of a statute.  See Rubin v.            
          United States, 449 U.S. 424, 430 (1981); Volkswagenwerk v. FMC,             
          390 U.S. 261, 272 (1968); FTC v. Colgate-Palmolive Co., 380 U.S.            
          374, 385 (1965).  While Natl. Cable & Telecomm. Association v.              
          Brand X Internet Servs., 545 U.S. 967 (2005), allows an agency in           
          certain cases to overrule an adverse judicial interpretation                
          through the issuance of regulations, that case is inapplicable              
          where, as here, the judicial interpretation follows from the                
          unambiguous terms of the statute.                                           




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