Swallows Holding, Ltd. - Page 130

                                        -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              





Page:  Previous  76  77  78  79  80  81  82  83  84  85  86  87  88  89  90  91  92  93  94  95  Next

Last modified: May 25, 2011