-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 section
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