Swallows Holding, Ltd. - Page 53

                                        -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,                 





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