Swallows Holding, Ltd. - Page 141

                                        -97-                                          
               As the Court of Appeals for the Seventh Circuit explained              
          in Bell Fed. Sav. & Loan Association v. Commissioner, 40 F.3d               
          224, 230 (7th Cir. 1994), revg. T.C. Memo. 1991-368:                        

               However, neither * * * [the taxpayer] nor the tax court has            
               pointed to any occasion when Congress even mentioned the               
               old--or new--regulation.  This fact is important to the                
               workings of the re-enactment doctrine for a relevant factor            
               in a court’s review is “the degree of scrutiny Congress has            
               devoted to the regulation during subsequent re-enactments              
               of the statute.” * * * [Citing National Muffler Dealers                
               Assoc., Inc. v. United States, 440 U.S. 472, 477 (1979).]              
               The regulations and statutes involved in this area are too             
               complex for us to venture to assume Congress’s intent                  
               through its silence.  Therefore, we choose to not second-              
               guess the Treasury on this matter.  The Sixth Circuit was              
               correct when it stated:                                                
                    The re-enactment doctrine is merely an interpretive               
                    tool fashioned by the courts for their own use in                 
                    construing ambiguous legislation.  It is most useful              
                    in situations where there is some indication that                 
                    Congress noted or considered the regulations in effect            
                    at the time of its action.  Otherwise, the doctrine               
                    may be as doubtful as the silence of the statutes and             
                    legislative history to which it is applied. * * *                 
                    [Quoting Peoples Fed. Sav. & Loan Association v.                  
                    Commissioner, 948 F.2d 289, 302-303 (6th Cir. 1991),              
                    revg. T.C. Memo. 1990-129.]                                       

               We also have applied this particular limitation to the                 
          legislative reenactment doctrine.  In Ashland Oil, Inc. v.                  
          Commissioner, 95 T.C. 348, 363 (1990),3 we refused to apply the             

               3  We also have stated that, “we do not believe that the               
          legislative reenactment doctrine can be applied to bar reasonable           
          amendments to regulations where * * * the change is made only               
          prospectively from the date of the announcement of the proposed             
          change.”  Wendland v. Commissioner, 79 T.C. 355, 384 (1982),                
          affd. sub nom. Redhouse v. Commissioner, 728 F.2d 1249 (9th Cir.            
                                                             (continued...)           





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