-125-
These distinctions should not make a difference--the Supreme
Court did not balance carefulness of consideration, prior
litigation history, or the amount of time that had passed between
the caselaw and the new regulation. It simply looked to see if
the agency had been delegated broad regulatory authority and
whether its construction of an ambiguous statutory phrase was
reasonable. Brand X, 125 S. Ct. at 2700-2702. Conflicting
precedent would have mattered only if that precedent had held the
phrase “telecommunications service” to have an unambiguous
meaning contrary to the regulation. Id. at 2700. And in this
case, the majority can point to no precedent that holds the
absence of a time restriction in section 882 unambiguously means
that there is no time restriction.
III.
Finding the regulation unreasonable under National Muffler,
even if section 882 is ambiguous, raises some very difficult
issues at the intersection of administrative and tax law. I
think the majority has erred, both in relying so heavily on the
disputed regulation’s change to existing law and in being so
skeptical about whether Brand X even applies to tax regulations,
majority op. p. 77. I also think those errors are examples of
how difficult some of these issues have proven to be for trial
courts conscientiously trying to follow their reviewing courts’
precedents. In the spirit of Eberhart v. United States, 546 U.S.
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