Swallows Holding, Ltd. - Page 45

                                        -131-                                         

          op. p. 62 note 17, illustrates this.  It rhetorically asks:                 
          “Where that * * * rule came from, we do not know.”  Majority op.            
          p. 62 note 17.  The fact is that the Secretary routinely makes              
          tax law more certain by using his regulatory authority under                
          section 7805(a) to dredge safe harbors and stake well-defined               
          boundaries.  See, e.g., sec, 1.401(a)(4)-2(b) Income Tax Regs.              
          There are undoubtedly hundreds more such instances scattered                
          throughout the five thick volumes of title 26 of the Code of                
          Federal Regulations.  They (or at least most of them) survive               
          Chevron review because they are “permissible constructions” in              
          the sense that they don’t violate the Code, not in the sense that           
          they interpret the Code in the same way a judge using normal                
          canons of statutory interpretation would.  If each of these                 
          detailed regulations had to survive scrutiny by matching it up              
          against general statutory language and asking “where did this               
          come from?,” instead of “does the Code prohibit it?” today’s                
          Opinion would ignite a thoroughgoing revolution in tax law.                 
                                        B.                                            
               This observation brings me to the next two issues today’s              
          decision raises--should regulations issued under section 7805(a)            
          receive Chevron deference?  And what would such deference look              
          like?                                                                       
               The key text here is the famous passage from Chevron where             
          the Supreme Court said:                                                     





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