-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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