-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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