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time the regulation has been in effect,
the reliance placed on it, the consistency
of the Commissioner’s interpretation, and
the degree of scrutiny Congress has
devoted to the regulation during
subsequent re-enactments of the statute.
* * *
Id.
National Muffler gives great weight to the consistency of an
agency’s position over time, consistency with judicial prece-
dent,10 and any reliance interest the public might have
developed. This makes a regulation that changes existing law
more likely to be invalidated. And this is logical--if a court
has to consider factors focusing on the Secretary’s justification
for changing his position, there will be some cases where they
will be decisive. See, e.g., Pac. First Fed. Sav. Bank v.
Commissioner, 94 T.C. 101 (1990) (discussed supra note 2).
Chevron review places substantially less emphasis on
justification for regulatory change. It expressly recognizes
that there can be a range of permissible alternatives, and
directs a court to decide only if the agency’s regulation is “a
permissible construction of the statute.” Chevron, 467 U.S. at
10 This seems to be a special concern for our Court. See,
e.g., Ga. Fed. Bank v. Commissioner, 98 T.C. 105, 114 (1992)
(later vacated and remanded) (regulations contrary to judicial
precedents “created a greater inconsistency than they resolved”);
Redlark, 106 T.C. at 57 (“The nuts and bolts of this case is that
the Commissioner continues to disagree with the pre-TRA judicial
view”); see also majority op. p. 63 (deference unwarranted where
Secretary has “total disregard to firmly established judicial
precedent”).
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