-142- I will only add a cite to Motor Vehicle Mfrs. Assn. of the United States, Inc. v. State Farm, 463 U.S. 29 (1983). In that case, the Supreme Court wrote that a regulation was arbitrary and capricious if: the agency has relied on factors which Congress has not intended it to consider, entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or is so implausible that it could not be ascribed to a difference in view or the product of agency expertise.* * * Id. at 43; see also Sunstein, 90 Colum. L. Rev. at 2104-2105. That is of course far from what happened here. The Secretary faced an ambiguous phrase in a Code section, unambiguously aimed at giving foreign corporations a major incentive to file their returns. He also learned by experience that some taxpayers would wait to file until a notice of deficiency was issued, Anglo-American, 38 B.T.A. 711, or would file only after starting a case in this Court, Blenheim, 125 F.2d 906, or would refuse to file even after a revenue agent came calling, Ardbern, 120 F.2d 424. To issue a regulation with a fixed grace period and provision for exceptions reflected experience, failed to consider no aspect of the problem, and ran counter to no reasonable evidence before him. The regulation did change existing law, but under Chevron and Brand-X, the Secretary should be allowed to “change the law”--even if the law is ourPage: Previous 124 125 126 127 128 129 130 131 132 133 134 135 136 137 138 139 140 141 142 143 Next
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