-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,”
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