-120-
! had been in effect for only a short time before
being challenged,
! was not issued after a revision to section 882,
and
! was not relied on by petitioner to his detriment.
See majority op. pp. 65-67.
Each of these statements is at least arguably true--though
it seems a stretch to say that a bright-line 18-month grace
period is so substantially different from the old reasonable-
time-before-letting-the-IRS-bring-the-curtain-down-by-filing-a-
substitute-return test as to be in “conflict”. And each of the
factors the majority cites is concededly relevant in a National
Muffler analysis. These counts, though, don’t add up to a
successful indictment of the regulation’s reasonableness. For
what really seems to trouble the majority is that this regulation
was promulgated years after section 882 or its predecessor was
enacted, and that it disregarded the caselaw that had built up in
the meantime. These related issues are the “legislative
reenactment” and “Brand-X” problems.
A.
According to the majority, the legislative reenactment
doctrine means that “Congress is presumed to have known of the
administrative and judicial interpretations of a statutory term
reenacted without significant change and to have ratified and
included that interpretation in the reenacted term.” Majority
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