-94-
Regs., “simply adopts respondent’s unsuccessful litigating
position”, majority op. p. 63, or seeks to “resurrect * * *
[respondent’s] failed litigating position”, majority op. p. 84,
the regulation in issue incorporates significant aspects of the
judicially crafted filing deadline that was in effect for many
years prior to 1990.
It would seem obvious that the increased number of foreign
corporation Federal income tax returns filed with respondent in
today’s world (as distinguished from the 1930s when the cases
relied on by the majority opinion were decided) and the
increasingly complex tax laws and tax administration applicable
thereto would support, per se, respondent’s effort, by properly
promulgated regulation, to modify and clarify, in the above
modest manner, the return filing deadline that has been
applicable to foreign corporations.
Further, it is appropriate to emphasize that the regulation
at issue herein provides in subdivision (ii) of section 1.882-
4(a)(3), Income Tax Regs., a good cause, facts and circumstances
exception to the return filing deadline otherwise applicable
under section 1.882-4(a)(3)(i), Income Tax Regs. This aspect of
the 1990 regulation is consistent with the facts and
circumstances filing deadline that was applied by the Court of
Appeals for the Fourth Circuit in Ardbern Co. v. Commissioner,
120 F.2d 424 (4th Cir. 1941).
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