-65-
Applebaum v. Commissioner, 724 F.2d 375, 381-382 (3d Cir. 1983)
(Adams, J., concurring), affg. T.C. Memo. 1982-278. Courts “are
not obliged to stand aside and rubber-stamp their affirmance of
administrative decisions that they deem inconsistent with a
statutory mandate or that frustrate the congressional policy
underlying a statute”. NLRB v. Brown, 380 U.S. 278, 291 (1965);
accord FEC v. Democratic Senatorial Campaign Comm., 454 U.S. 27,
32 (1981).
C. Application of Natl. Muffler
We also conclude that the Secretary’s interpretation of a
timely filing requirement is unreasonable under an analysis of
the considerations discussed in Natl. Muffler Dealers Association
v. United States, 440 U.S. at 477. That case requires that we
take into account the following considerations: (1) Whether the
regulation is a substantially contemporaneous construction of the
statute by those presumed to have been aware of congressional
intent; (2) the manner in which a regulation dating from a later
period evolved; (3) the length of time that the regulation has
been in effect; (4) the reliance placed upon the regulation;
(5) the consistency of the Secretary’s interpretation; and
21(...continued)
nonresident aliens owning property in the United States that
their “allocable deductions * * * may be relatively large” and
that not allowing such deductions “may result in quite heavy tax
burdens”).
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