United States v. Burke, 504 U.S. 229, 18 (1992)

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246

UNITED STATES v. BURKE

Souter, J., concurring in judgment

priate means, see, e. g., Motor Vehicle Mfrs. Assn. of United States, Inc. v. State Farm Mut. Automobile Ins. Co., 463 U. S. 29, 41-42 (1983)), they cannot be bound by regulations that are contrary to law. Otherwise, the Secretary of the Treasury would effectively be empowered to repeal taxes that the Congress enacts. Cf. Office of Personnel Management v. Richmond, 496 U. S. 414, 427-428 (1990). The existence of an ever-so-rare "taxpayer-friendly" Treasury regulation (however inconsistent with the statutory text) may be relevant to whether penalties for blameworthy failure to pay can be assessed, see Cheek v. United States, 498 U. S. 192 (1991), but it cannot control the determination whether the tax was due and owing according to Congress' command.

Finally (and relatedly), I must acknowledge that the basis for reversing the Court of Appeals on which I rely has not been argued by the United States, here or below. The rule that points not argued will not be considered is more than just a prudential rule of convenience; its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one. See United States v. Pryce, 291 U. S. App. D. C. 84, 96, 938 F. 2d 1343, 1355 (1991) (Silberman, J., dissenting in part). Even so, there must be enough play in the joints that the Supreme Court need not render judgment on the basis of a rule of law whose nonexistence is apparent on the face of things, simply because the parties agree upon it—particularly when the judgment will reinforce error already prevalent in the system. See, e. g., Arcadia v. Ohio Power Co., 498 U. S. 73 (1990). I think that is the case here.

For the foregoing reasons, I concur in the judgment.

Justice Souter, concurring in the judgment.

Respondents may not exclude their recovery from taxable income unless their action was one "based upon tort or tort type rights." 26 CFR 1.104-1(c) (1991). On the reasonable assumption that the regulation reflects the broad dichot-

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