-132-
If Congress has explicitly left a gap for the
agency to fill, there is an express delegation
of authority to the agency to elucidate a
specific provision of the statute by
regulation. Such legislative regulations are
given controlling weight unless they are
arbitrary, capricious, or manifestly contrary
to the statute. Sometimes the legislative
delegation to an agency on a particular
question is implicit rather than explicit. In
such a case, a court may not substitute its own
construction of a statutory provision for a
reasonable interpretation made by the
administrator of an agency.
467 U.S. at 843-44 (fn. refs. omitted).
What is an “express delegation of authority to the agency to
elucidate a specific provision of the statute by regulation?”
And what is the difference between reviewing a regulation to
decide whether it is “arbitrary, capricious, or manifestly
contrary to the statute” in contrast to a “reasonable
interpretation?”
I’ll discuss each in turn.
1.
The majority accurately states our Court’s general rule - if
the Secretary issues a regulation under section 7805(a), we call
it “interpretive” and analyze its validity under National
Muffler, but if the Secretary issues a regulation under a more
specific grant of authority, we call it “legislative,” and
analyze its validity under Chevron. Walton v. Commissioner, 115
T.C. 589, 597 (2002).
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