-66-
(6) the degree of scrutiny Congress has devoted to the regulation
during subsequent reenactments of the statute. Id.
Our analysis of these considerations reinforces our
conclusion that the disputed regulations are invalid. The
regulations were issued in 1990, 62 years after the relevant text
was enacted and 72 years after the enactment of the parallel
provision of section 217 of the Revenue Act of 1918. Thus, the
disputed regulations are not a “substantially contemporaneous
construction of the statute by those presumed to have been aware
of congressional intent”. Id. at 477. We therefore inquire into
the manner in which the disputed regulations evolved. See id.
The disputed regulations were issued after both the Court of
Appeals for the Fourth Circuit and the Board had repeatedly and
consistently held that the relevant text did not include a timely
filing requirement.22 The regulations also were issued after
multiple reenactments of the relevant text, none of which altered
the judiciary’s construction of the text, and merely adopted
respondent’s unsuccessful litigating position. The Secretary’s
statement accompanying the issuance of the disputed regulations,
22 The relevant meaning that we distill from the referenced
cases of the Court of Appeals for the Fourth Circuit and the
Board is twofold. First, a foreign corporation must file a tax
return in order to deduct its expenses. Second, the
Commissioner’s preparation of a substitute return for the
corporation is generally considered to be the corporation’s
return for Federal income tax purposes and divests the taxpayer
of its entitlement to file a return for itself.
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