suggesting that there might not be any differences between Chevron and National Muffler, and that if there are any such differences they are "subtle”
How later courts described this case
- suggesting that there might not be any differences between Chevron and National Muffler, and that if there are any such differences they are "subtle”
- discussing the “checkered career” of Chevron deference in the tax arena
- questioning whether Chevron applies to interpretative Federal tax regulations
- discussing the review of Federal tax regulations under Natl. Muffler in relation to Chevron
Written by the judges who cited it.
The opinion
Beghe, J., concurring: The writer joined this Court in time to join the majority and concurring opinions in Georgia Fed. Bank v. Commissioner, 98 T.C. 105, 119 (1992) (Court reviewed), vacated and remanded by agreement of the parties (11th Cir., July 12, 1994). More recently, however, the writer chided his colleagues for continuing to swim against the tide, Estate of Hubert v. Commissioner, 101 T.C. 314, 351 (1993) (Beghe, J., concurring in part and dissenting in part), and for invalidating a legislative regulation that four other Judges of this Court found not “‘arbitrary, capricious or manifestly contrary to the statute’”, Tate & Lyle, Inc. & Subs. v. Commissioner, 103 T.C. 656, 697-698 (1994) (Beghe, J., dissenting) (citations omitted). If the writer hadn’t gone along with the majority in the case at hand, he might well accuse himself, in the face of the reversals by the Courts of Appeals for the Sixth, Seventh, and Ninth Circuits (and the agreement by the taxpayer in Georgia Fed. Bank v. Commissioner, supra, to the full deficiency determined by the Commissioner), of both inconsistency and lese majesty.
The writer continues to be concerned by the actions of the Treasury in changing its policy on the interaction of savings bank NOL carrybacks and bad debt reserves. He is particularly disturbed by the contrast between the cursory justifications advanced for public consumption in the preambles to the notice of proposed rule making, 36 Fed. Reg. 15050 (Aug. 12, 1971), and the final regulation, 43 Fed. Reg. 21454 (May 18, 1978), and the in camera memoranda for senior Treasury officials referred to in Georgia Fed. Bank v. Commissioner, 98 T.C. at 111 n.2 (1978 memo) and 112 n.3 (1971 memo) — primarily the 1978 memo, which was relied upon by the Court of Appeals for the Sixth Circuit in Peoples Fed. Sav. & Loan Association of Sidney v. Commissioner, 948 F.2d 289, 303 (6th Cir. 1991), revg. and remanding T.C. Memo. 1990-129 .
The Court of Appeals for the Tenth Circuit has recently reminded this Court that departments and agencies of the executive branch, including the Internal Revenue Service, should, under general principles of administrative law, contemporaneously declare the reasons for their decisions. Fisher v. Commissioner, 45 F.3d 396, 397 (10th Cir. 1995) (citing Harberson v. NLRB, 810 F.2d 977, 984 (10th Cir. 1987) and SEC v. Chenery Corp., 318 U.S. 80, 94 (1943)), revg. and remanding T.C. Memo. 1992-740 . However, the writer is now more mindful of the Supreme Court’s admonition to the judicial branch to defer to decisions of the executive branch, particularly when they are politically motivated, and even when they change policy. Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 863-866 (1984). The writer therefore concludes that the Treasury’s belated in camera rationalizations in support of the final regulation were sufficient to render the regulation “reasonable” under the standards being applied by higher courts.