130
Scalia, J., dissenting
to bring little or no income to the Treasury, the Commissioner chose, in Revenue Ruling 93-48, to "adopt the result" of then-recent court decisions regarding interest on taxes. It is impossible to think that this suggested her view on the proper treatment of administrative expenses had changed. Indeed, the Ruling itself expressly indicates continued adherence to the Commissioner's longstanding position by reaffirming Revenue Ruling 73-98, which held that the charitable deduction must be reduced by the amount of charitable bequest income and principal consumed to pay administrative expenses, modifying it only insofar as it applies to payment of interest on taxes. Moreover, the Courts of Appeals whose results the Commissioner adopted themselves distinguished administrative expenses. In Estate of Street, for example, the court reasoned that while administrative expenses accrue at death interest on taxes accrues after death, and noted that the example in Treas. Reg. § 2056(b)-4(a) specifically required a reduction of the marital deduction for payment of administrative expenses, but was silent as to interest on taxes. 974 F. 2d, at 727, 729. While the concurrence may be correct that the distinctions advanced by the Courts of Appeals are not wholly persuasive (the Commissioner herself argued that to no avail), I hardly think they are so irrational that it was arbitrary or capricious for the Commissioner to maintain her longstanding prior position on administrative expenses once Revenue Ruling 93-48 was issued; and it is utterly impossible to think that Revenue Ruling 93-48 was, or was understood to be, an indication that the Commissioner had changed her prior position on administrative expenses. That eliminates the only two grounds on which Revenue Ruling 93-48 could be relevant.
The concurrence's reading of Revenue Ruling 93-48 suffers from an additional flaw. Revenue Ruling 93-48 is not limited to payment from marital bequest income, but rather extends to payment from marital bequest principal as well. Thus, under the concurrence's view of that Ruling, even sub-
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