Swallows Holding, Ltd. - Page 109

                                        -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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