-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:Page: Previous 121 122 123 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 Next
Last modified: May 25, 2011