-107-
determining whether section 1.882-4(a)(2) and (3)(i), Income Tax
Regs., is based on a permissible construction of section
882(c)(2) is whether it represents a “reasonable” interpretation
of that section. See Atl. Mut. Ins. Co. v. Commissioner, 523
U.S. at 389.2
To be more specific, we must determine whether the 18-month
limitation found in section 1.882-4(a)(3), Income Tax Regs., is
reasonable, since the otherwise applicable filing limitation
found in section 1.882-4(a)(2) and (3)(i), Income Tax Regs.,
construes the statute in a similar (indeed, in a more generous)
manner than the courts have construed it. See Judge Swift’s
dissent p. 90. I have already quoted our report in Espinosa v.
Commissioner, supra, to the effect that the policy behind
section 882(c)(2) implies a cutoff point or terminal date after
which it is too late to submit a tax return and claim the
benefit of deductions. The question is thus one of line
drawing, and the majority has failed to convince me that the
line drawn by the Secretary is unreasonable. Judges Holmes and
Swift have adequately dealt with the majority’s conclusion to
the contrary, and I have nothing to add. I also fully join
2 I am not ready to join Judge Holmes in concluding that,
in United States v. Mead Corp., 533 U.S. 218 (2001), the Supreme
Court “clarified the law, by conflating the standard of
‘reasonableness’ with the standard of ‘arbitrary, capricious, an
abuse of discretion, or otherwise not in accordance with law.’”
Judge Holmes’s dissent p. 141.
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