-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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