Swallows Holding, Ltd. - Page 120

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          Commissioner’s determination are “returns” within the meaning of            
          former sec. 233).  Contrary to respondent’s assertion that the              
          Court of Appeals for the Fourth Circuit and the Board construed             
          the statute to impose a timely filing requirement, those                    
          tribunals, in referencing the word “timely”, were adopting a                
          judicial limitation based on (1) the statute’s requirement that a           
          foreign corporation file a tax return in order to deduct its                
          expenses and (2) their conclusion that a foreign corporation                
          could not file such a return if a return had already been                   
          prepared for it by the Commissioner.                                        
               D.  Natl. Cable                                                        
               In the recent case of Natl. Cable & Telecomm. Association v.           
          Brand X Internet Servs., 545 U.S.    , 125 S. Ct. 2688 (2005),              
          the Supreme Court decided the validity of a regulation that                 
          construed a statute inconsistently with a prior judicial                    
          interpretation.  The Court held that “A court’s prior judicial              
          construction of a statute trumps an agency construction otherwise           
          entitled to Chevron deference only if the prior court decision              
          holds that its construction follows from the unambiguous terms of           
          the statute and thus leaves no room for agency discretion.”  Id.            
          at 2700.  The Court stated:  “Only a judicial precedent holding             
          that the statute unambiguously forecloses the agency’s                      
          interpretation, and therefore contains no gap for the agency to             
          fill, displaces a conflicting agency construction.”  Id. at 2700.           






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