840
Stevens, J., dissenting
As the majority accurately reports, during the time relevant to this case, § 172(b)(1)(I) of the Internal Revenue Code of 1954 allowed any "taxpayer" who "ha[d] a product liability loss" to carry back its excess product liability losses for 10 years. The resolution of this case turns on whether, when a group of affiliated corporations files a consolidated tax return, the entire group should be considered the "taxpayer" for the purposes of implementing this provision or whether each individual corporation should be seen as a "taxpayer."
There is no obvious answer to this question. On the one hand, it is generally accepted that the rationale behind the consolidated return regulations is to allow affiliated corporations that are run as a single entity to elect to be treated for tax purposes as a single entity. See, e. g., Brief for Petitioner 17-19 (collecting sources in which the Internal Revenue Service so stated). On the other hand, it is quite clear that each corporation in such a group remains in both a legal and a literal sense a "taxpayer," a status that has important consequences. See Woolford Realty Co. v. Rose, 286 U. S. 319, 328 (1932) ("The fact is not to be ignored that each of two or more corporations joining . . . in a consolidated return is none the less a taxpayer"); 26 U. S. C. § 7701(a)(14) (defining a "taxpayer" as "any person subject to any internal revenue tax," where a related provision defines "person" to include corporations). As both the group and the individual corporations are considered "taxpayers" in different contexts, the statute presents a genuine ambiguity.
When a provision of the Internal Revenue Code presents a patent ambiguity, Congress, the courts, and the IRS share a preference for resolving the ambiguity via executive action. See, e. g., National Muffler Dealers Assn., Inc. v. United States, 440 U. S. 472, 477 (1979). This is best
319 U. S. 590, 593 (1943); Deputy, Administratrix v. Du Pont, 308 U. S. 488, 493 (1940); New Colonial Ice Co. v. Helvering, 292 U. S. 435, 440 (1934); Woolford Realty Co. v. Rose, 286 U. S. 319, 326 (1932).
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