Swallows Holding, Ltd. - Page 57

                                        -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 our               






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