PSB Holdings, Inc. - Page 20




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          we evaluate the revenue ruling under the less deferential                   
          standard enunciated in Skidmore v. Swift & Co., 323 U.S. 134                
          (1944), according the ruling respect proportional to its “power             
          to persuade”.  See United States v. Mead Corp., 533 U.S. 218,               
          234-235, 237 (2001).                                                        
               Rev. Rul. 90-44, 1990-1 C.B. at 57, states in relevant part:           
                    If one or more financial institutions are members                 
               of an affiliated group of corporations (as defined in                  
               section 1504 of the Code), then, even if the group                     
               files a consolidated return, each such institution must                
               make a separate determination of interest expense                      
               allocable to tax-exempt interest, rather than a                        
               combined determination with the other members of the                   
               group.                                                                 
                    However, in situations involving taxpayers which                  
               are under common control and one or more of which is a                 
               financial institution, in order to fulfill the                         
               congressional purpose underlying section 265(b) of the                 
               Code, the District Director may require another                        
               determination of interest expense allocable to                         
               tax-exempt interest to clearly reflect the income of                   
               the financial institution or to prevent the evasion or                 
               avoidance of taxes.                                                    
          The first quoted paragraph parallels the text of the statutes,              
          stating that the subject calculation “must” be made separately              
          for each member of the affiliated group.  The second quoted                 
          paragraph departs from that text, creating an exception that                
          “may” apply to taxpayers under common control when one or more of           
          the taxpayers is a financial institution.  The ruling sets forth            
          no reasoning or authority for the exception, other than stating             
          that the exception was prescribed “in order to fulfill the                  
          congressional purpose underlying section 265(b)” and may be                 






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