-126-
___, 126 S. Ct. 403, 407 (2005), revg. 388 F.3d 1043 (7th Cir.
2004), I think it important not to hide these troublesome issues
and hope that their effects in this case will help those likely
to review our decision.
A.
The first issue is whether it is still correct to say, as we
did ten years ago, that
we are inclined to the view that the
impact of the traditional, i.e., National
Muffler standard, has not been changed by
Chevron, but has merely been restated in
a practical two-part test * * *
Central Pa. Sav. Association & Subs. v. Commissioner, 104 T.C.
384, 392 (1995) (quoted at majority op. p. 56). Both National
Muffler and Chevron do tell courts to review regulations for
their reasonableness. But the factors that each test tells us to
consider can be quite different.
National Muffler--at least as our Court has applied it--
requires a top-to-bottom review of the regulation to see if it is
in harmony with the “plain language of the statute, its origin,
and its purpose.” National Muffler, 440 U.S. at 477. It
requires us to consider whether a regulation:
is a substantially contemporaneous
construction of the statute by those
presumed to have been aware of
congressional intent. If the regulation
dates from a later period, the manner in
which it evolved merits inquiry. Other
relevant considerations are the length of
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