-119- determinations). If the majority’s hesitance to explicitly overrule Taylor Securities is an endorsement of what was, over 60 years ago, “the generally accepted rule concerning the number of returns which may be filed,” majority op. p. 75 note 28, quoting Blenheim, 125 F.2d at 910, it will just cause more confusion given the intervening evolution in the effect of substitute returns. II. Having concluded that the plain language of section 882 invalidates the regulation, the majority could have stopped. Instead, as an alternative holding, it goes on to analyze the reasonableness of the regulation under National Muffler--asking whether the regulation “(harmonizes with the plain language of the statute, its origin, and its purpose.)” Majority op. p. 55 (quoting National Muffler, 440 U.S. at 477). Applying National Muffler, the majority concludes that the regulation is out of tune with the statute not just because it fails to harmonize with section 882's plain language but because the regulation: ! is “not a ‘substantially contemporaneous construction of the statute,’” ! “merely adopted respondent’s unsuccessful litigating position,” ! “conflicts with the agency’s previous interpretation of the same statute,”Page: Previous 109 110 111 112 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 Next
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