-113-
and language of the statute as a whole. If the text is
ambiguous and so open to interpretation in some respects, a
degree of deference is granted to the agency.”7
The majority crane their necks away from the actual words
of section 882 and its place in the Code to look at whether the
regulation “adopts respondent’s unsuccessful litigating
position, with total disregard for judicial precedent,” majority
op. p. 63, and at the legislative reenactment doctrine, majority
op. p. 62 note 18. As I discuss later on, these factors are
only relevant, if at all, in reviewing a regulation based on a
text that we’ve already found to be ambiguous. The majority’s
strongest point, though, is their cataloging of the various
times in the Code where a phrase like “at the time and in the
manner prescribed” appears. The absence of the first part of
the phrase, they reason, means that the second part--“in the
manner prescribed” has no “time element” because Congress must
7 Whether a court should look to the text alone in deciding
if a statute is ambiguous, as in Natl. R.R. Passenger, or to the
text plus legislative history, as Chevron implies, see Chevron,
467 U.S. at 842, is a matter of some controversy. See Coke v.
Long Island Care at Home, Ltd., 376 F.3d 118, 127 n.2 (2d Cir.
2004) (collecting cases); see also Tax Analysts v. Commissioner,
350 F.3d 100, 103-104 (D.C. Cir. 2003); Hosp. Corp. of America &
Subs. v. Commissioner, 348 F.3d 136, 144 (6th Cir. 2003) affg.
107 T.C. 73 (1996). It doesn’t matter in this case because the
legislative history of section 882 shows no congressional intent
one way or the other about when a foreign corporation must file
its return to avoid loss of deductions. See infra p. 122.
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