-105-
822(c)(2) and its precursors provide guidance of general
applicability concerning timeliness; it merely resolves issues
created by unique fact patterns on a case-by-case basis.
Although those cases do not unambiguously establish the limits
of timeliness, they clearly establish that timely filing is
required. Those cases treat section 882(c)(2) as if it were
incomplete: Timeliness is required, but timeliness is not
defined. Timeliness is anchored by section 6072 to the date
required for filing the return, but neither section 882(c)(2)
nor any other provision of the Code tells us when the line runs
out. This case does not involve the question of whether a line
can be drawn to enforce section 882(c)(2); that has already been
decided in the affirmative. This case involves the question of
who gets to draw the line: the courts or the Secretary? The
clearly expressed intent of Congress to the contrary not being
apparent, the Secretary is not deprived of his authority under
section 7805(a) to draw that line (i.e., to establish needful
rules and regulations for the enforcement of section 882(c)(2)).
III. Second Question: Is the Secretary’s Regulation Based on a
Permissible Construction of the Statute?
Having reached the second step in our sequential analysis,
the question that we must answer is whether the timely filing
rule found in section 1.882-4(a)(2) and (3)(i), Income Tax
Regs., is based on a permissible construction of the statute.
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