96
Syllabus
ing, the Commissioner has created a quantitative materiality rule for § 20.2056(b)-4(a). This rule is consistent with the example set forth in § 20.2056(b)-4(a), and the Commissioner's expressed preference for such a construction is entitled to deference. Pp. 112-120. (b) The proper measure of materiality has yet to be decided by the Commissioner. In the absence of guidance from the Commissioner, the Tax Court's approach is as consistent with the Code as any other test, and provides no basis for reversal. Here, the Commissioner's litigation strategy effectively pre-empted the Tax Court from finding the $1.5 million diminution in postmortem income material under a quantitative materiality test, for she argued that any diversion of postmortem income was material and never presented any evidence or argued that this diminution was quantitatively material. Her failure to offer proof of materiality left the Tax Court with little choice but to reach its carefully crafted conclusion that the amount was not quantitatively material on the facts before it. Pp. 120-122.
Kennedy, J., announced the judgment of the Court and delivered an opinion, in which Rehnquist, C. J., and Stevens and Ginsburg, JJ., joined. O'Connor, J., filed an opinion concurring in the judgment, in which Souter and Thomas, JJ., joined, post, p. 111. Scalia, J., filed a dissenting opinion, in which Breyer, J., joined, post, p. 122. Breyer, J., filed a dissenting opinion, post, p. 138.
Kent L. Jones argued the cause for petitioner. With him on the briefs were Solicitor General Days, Acting Solicitor General Dellinger, Assistant Attorney General Argrett, Deputy Solicitor General Wallace, Jonathan S. Cohen, and Joan I. Oppenheimer.
David D. Aughtry argued the cause for respondent. With him on the brief was Shelley Cashion.*
*Briefs of amici curiae urging affirmance were filed for the American College of Trust and Estate Counsel by Edward F. Koren and Alvin J. Golden; for the American Council on Education et al. by Matthew J. Zinn and Carol A. Rhees; for the Baptist Foundation of Texas et al. by Terry L. Simmons, pro se; and for the Tax Section of The Florida Bar by Jerald David August and James J. Freeland.
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