Swallows Holding, Ltd. - Page 127

                                        -83-                                          
          compelling equitable consideration is present so as to serve                
          elementary justice.  The Court of Appeals for the Fourth Circuit            
          held specifically in Ardbern Co. v. Commissioner, supra at 426,             
          that former section 233 does not forbid a taxpayer from                     
          deducting expenses when the taxpayer files, or attempts in good             
          faith to file, a return claiming those deductions before the                
          Commissioner determines a deficiency against the taxpayer or                
          files a substitute return on the taxpayer’s behalf.  Accord                 
          Blenheim v. Commissioner, supra at 908 (“It is true that this               
          section [section 233 of the 1928 and 1932 Revenue Acts] contains            
          no reference to a time element.”).                                          
          XI.  Conclusion                                                             
               On the basis of the foregoing, we conclude that the                    
          disputed regulations are invalid to the extent described herein.            
          Given the plain meaning of the relevant text and the historical             
          setting laid out in detail in this Opinion, including caselaw,              
          legislation, legislative history, and regulations, the                      
          Secretary’s adoption of a timely filing requirement and his                 
          attempted sub silentio overruling of contrary judicial and                  
          administrative precedents is unreasonable under Natl. Muffler               
          Dealers Association v. United States, 440 U.S. 472 (1979).30                

               30 We note that this case is strikingly similar to Anglo-Am.           
          Direct Tea Trading Co. v. Commissioner, 38 B.T.A. 711 (1938),               
          where the taxpayer was allowed to receive the benefit of its                
          deductions upon the untimely filing of returns more than                    
                                                             (continued...)           





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