Swallows Holding, Ltd. - Page 17

                                        -106-                                         
          In Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467            
          U.S. at 843-844, the Supreme Court said:                                    
               If Congress has explicitly left a gap for the agency                   
               to fill, there is an express delegation of authority                   
               to the agency to elucidate a specific provision of the                 
               statute by regulation.  Such legislative regulations                   
               are given controlling weight unless they are                           
               arbitrary, capricious, or manifestly contrary to the                   
               statute.  Sometimes the legislative delegation to an                   
               agency on a particular question is implicit rather                     
               than explicit.  In such a case, a court may not                        
               substitute its own construction of a statutory                         
               provision for a reasonable interpretation made by the                  
               administrator of an agency.  [Fn. refs. omitted.]                      
               Section 882(c)(2) does not specifically make the allowance             
          of deductions to a foreign corporation contingent on a timely               
          filed return, nor does it grant the Secretary express authority             
          to prescribe regulations defining timeliness for purposes of                
          section 882(c).  In promulgating section 1.882-4(a)(2) and                  
          (3)(i), Income Tax Regs., the Secretary exercised his rulemaking            
          authority under section 7805(a), which gives the Secretary                  
          general authority to "prescribe all needful rules and                       
          regulations for the enforcement" of the Internal Revenue Code.              
          See T.D. 8322, 1990-2 C.B. 172.1  The appropriate standard for              


               1  In Boeing Co. v. United States, 537 U.S. 437, 448 (2003),           
          the Supreme Court said of another Treasury regulation issued                
          under the authority of sec. 7805(a):  “Even if we regard the                
          challenged regulation [sec. 1.861–8(e)(3) (1979), Income Tax                
          Regs.] as interpretive because it was promulgated under �                   
          7805(a)'s general rulemaking grant rather than pursuant to a                
          specific grant of authority, we must still treat the regulation             
          with deference.  See Cottage Savings Assn. v. Commissioner, 499             
          U.S. 554, 560-561 (1991).”                                                  





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