-86- SWIFT, J., dissenting: For the reasons explained below, I respectfully disagree with the majority opinion. (1) The majority opinion fails properly to distinguish the pre-1990 “no-regulation environment” of the cited court opinions from the environment or authority that came into existence upon promulgation in 1990 of section 1.882-4(a)(2) and (3)(i) and (ii), Income Tax Regs. With regard to such a change in the regulatory environment applicable to a particular Federal law question, the Supreme Court recently stated in Natl. Cable & Telecomm. Association v. Brand X Internet Serv., 545 U.S. , 125 S. Ct. 2688, 2700 (2005): allowing a judicial precedent to foreclose an agency from interpreting an ambiguous statute * * * would allow a court’s interpretation to override an agency’s. Chevron’s premise is that it is for agencies, not courts, to fill statutory gaps. * * * The better rule is to hold judicial interpretations contained in precedents to the same demanding Chevron step one standard that applies if the court is reviewing the agency’s construction on a blank slate: 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. [Citing Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843- 844 n.11 (1984).] Based on this recent Supreme Court explanation in Natl. Cable & Telecomm. Association of Chevron deference to be given Federal agency regulatory authority, I do not believe that 1930s and 1940s court opinions construing the predecessor of sectionPage: Previous 76 77 78 79 80 81 82 83 84 85 86 87 88 89 90 91 92 93 94 95 Next
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