120
O'Connor, J., concurring in judgment
See, e. g., Rev. Rul. 75-298, 1975-2 Cum. Bull. 290 (exempting from income tax the income of qualifying banks owned by foreign governments, as long as their participation in domestic commercial activity is de minimis); Rev. Rul. 90-60, 1990-2 Cum. Bull. 3 (establishing de minimis rule so that taxpayers who give up less than 33.3% of their partnership interest need not post a bond to enable them to defer payment of credit recapture taxes for low-income housing).
The Commissioner's quantitative materiality rule is consistent with the example set forth in 26 CFR § 20.2056(b)- 4(a) (1996):
"An example of a case in which [the material limitation] rule may be applied is a bequest of property in trust for the benefit of the decedent's spouse but the income from the property from the date of the decedent's death until distribution of the property to the trustee is to be used to pay expenses incurred in the administration of the estate."
Even assuming that Justice Scalia is correct that the word "may" connotes "possibility rather than permissibility," post, at 131, the example still does not specify whether it applies when all the income, some of the income, or any of the income "from the property . . . is to be used to pay expenses incurred in the administration of the estate." Any of these constructions of the example's language is plausible, and the Commissioner's expressed preference for the second one is worthy of deference. National Muffler Dealers Assn., Inc. v. United States, 440 U. S. 472, 476 (1979).
That said, the proper measure of materiality has yet to be decided by the Commissioner. The Tax Court below compared the actual amount spent on administration expenses to its estimate of the income to be generated by the marital bequest during the spouse's lifetime. 101 T. C., at 325. One amicus suggests a comparison of the discounted present value of the projected income stream from the marital be-
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