-139- and the rule is that we are bound to follow the cases that more directly control until and unless they are expressly overruled. Agostini v. Felton, 521 U.S. 203 (1997), quoted by Eberhart, 388 F.3d at 1049. But our Court has a special problem in trying to find the precedents it should follow--appeals from our decisions go to twelve different courts of appeal, and the question of what review a general authority regulation issued under section 7805 should get has already led to divergent results. Some of our reviewing courts have concluded that general authority regulations don’t qualify for Chevron deference, and some have concluded that they qualify only as an implicit delegation on a particular question and read Chevron as silently incorporating National Muffler and its factors as a test of “reasonableness.” And some read Chevron as requiring review of general authority regulations under an arbitrary-and-capricious standard. The resulting circuit split was noted as long ago as 1998. See Bankers Life and Casualty Co. v. United States, 142 F.3d 973, 982 (7th Cir. 1998). And it seems only to have become more pronounced: ! Second Circuit--Gen. Elec. Co. v. Commissioner, 245 F.3d 149, 154 n.8 (2001) (noting conflict but not taking sides) ! Third Circuit--E.I. du Pont de Nemours & Co. v. Commissioner, 41 F.3d 130, 135-36 and n.23 (1994) (less deference to general authority regulations,Page: Previous 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 Next
Last modified: May 25, 2011