-63-
See United States v. Mo. Pac. R. Co., 278 U.S. 269, 280 (1929);
United States v. Tanner, 147 U.S. 661, 663 (1893); Swift Co. v.
United States, 105 U.S. 691, 695 (1881); see also Atl. Mut. Ins.
Co. v. Commissioner, 523 U.S. 382, 387 (1998). Deference is
especially unwarranted where, as here, the Secretary’s
construction of the relevant text does not fill in a gap left
open by the statute as to a timeliness requirement but simply
adopts respondent’s unsuccessful litigating position, with total
disregard to firmly established judicial precedent,19 and adds an
18(...continued)
the relevant text as of the issuance of the disputed regulations
was reasonably capable of being understood in two or more senses
or ways. The Treasury Department was not the first authoritative
body to have interpreted the relevant text. That text had
previously been construed on a number of occasions by both the
Court of Appeals for the Fourth Circuit and the Board. In
addition, contemporaneous to the seminal interpretation of the
relevant text in Anglo-Am. Direct Tea Trading Co. v.
Commissioner, 38 B.T.A. 711 (1938), Congress codified the text in
the 1939 Code without any significant change from the text
construed by the Board in Anglo-Am. Direct Tea Trading Co..
Then, after both the Court of Appeals for the Fourth Circuit and
the Board had repeatedly and consistently construed the relevant
text as not including a timely filing requirement, Congress
recodified the relevant text in the 1954 and 1986 Codes, again
without any significant change. Given the multiple legislative
reenactments of the relevant text and the consistent and
unanimous prior interpretations of that text by the Court of
Appeals for the Fourth Circuit and the Board, we do not believe
that the relevant text as of the time of the disputed regulations
was reasonably capable of being understood in the sense advocated
by respondent and adopted by the Secretary in the form of the
disputed regulations.
19 We include the Board in our references to the judiciary.
Although the Board was established as “an independent agency in
the executive branch of the Government”, Revenue Act of 1924, ch.
(continued...)
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