-76- 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.Page: Previous 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 Next
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