Robinson v. Comm'r

Thornton, J., concurring: I am concerned that the majority opinion may contribute to confusion over the interpretive weight this Court will accord nonauthoritative congressional staff materials.

In its analysis, the majority opinion relies heavily on certain language appearing in the Joint Committee on Taxation General Explanation of the Tax Reform Act of 1986 (the Blue Book). In Redlark v. Commissioner, 106 T.C. 31, 45-46 (1996), revd. and remanded 141 F.3d 936 (9th Cir. 1998), this Court pointedly disregarded this same Blue Book language, stating:

Where there is no corroboration in the actual legislative history, we shall not hesitate to disregard the General Explanation [of the Blue Book] as far as congressional intent is concerned. * * * Given the clear thrust of the conference committee report, the General Explanation [of the Blue Book] is without foundation and must fall by the wayside. To conclude otherwise would elevate it to a status and accord it a deference to which it simply is not entitled.

Other opinions of this Court echo the notion that we require some direct corroboration of congressional intentions before we defer to Blue Book expressions thereof. See Allen v. Commissioner, 118 T.C. 1, 15 (2002) (“Although the Staff of the Joint Committee’s explanation of a tax statute may be entitled to respect as a document that is prepared in connection with the legislative process by individuals who are intimately involved in that process, we shall not hesitate to disregard the expressions set forth therein where, as here, those expressions are barren of corroboration in the legislative history.”); Zinniel v. Commissioner, 89 T.C. 357, 367 (1987) (“the portion of the General Explanation [of the Blue Book] * * standing alone, without any direct evidence of legislative intent, is not unequivocal evidence of legislative intent”), affd. 883 F.2d 1350 (7th Cir. 1989).

The majority opinion’s reliance on the Blue Book in overturning this Court’s decision in Redlark v. Commissioner, supra, raises at least three concerns.

First, to the extent the majority opinion purports to find corroboration for the Blue Book language in a Joint Committee staff summary “published” during the conference on the 1986 Act (and not expressly considered in this Court’s Redlark opinion), it is unsatisfactory. The Joint Committee staff summary is scarcely more reliable an indicator of congressional intentions than the Blue Book itself. Like the Blue Book, the Joint Committee summary was a staff-generated document; it was released as á committee print rather than as a report; there is no indication that any member of Congress approved it during consideration of the 1986 Act. A mere proliferation (or more precisely, a mere doubling up) of staff-generated materials cannot supply the want of direct evidence of congressional intentions.

Second, to the extent the majority opinion means to repudiate the views of this Court as expressed in Redlark and other opinions, requiring some direct corroboration of Blue Book expressions of congressional intentions, it raises significant questions about the standard this Court now intends to apply in assessing the interpretive weight to accord materials like the Blue Book that technically are not part of the legislative history. The only express clue provided by the majority opinion appears in its statement that “if a Blue Book were to conflict with enacted language or controlling legislative history, then the statutory language or the controlling legislative history would prevail.” Majority op. p. 65. This statement might be construed as suggesting that, even in the absence of direct corroboration in the statute or other controlling legislative materials, a Blue Book explanation will be considered as controlling unless it actually conflicts with these materials. Any such suggestion is troublesome. As has been observed elsewhere, there should be no “one generic standard for assessing the Blue Book’s authority”; rather, the “Blue Book’s interpretative weight depends, in large measure, on the role it is performing.” Livingston, “What’s Blue and White and Not Quite as Good as a Committee Report: General Explanations and the Role of ‘Subsequent’ Tax Legislative History”, 11 Am. J. Tax Poly. 91, 105, 122 (1994). Where, as here, a Blue Book explanation does more than merely collate materials from the official committee reports or clarify inconsistencies therein, and instead purports to add a new gloss to the statute, we should be free to disregard the Blue Book explanation or at least accord it greatly reduced interpretive weight.

Third, the stark divergence between this Court’s analysis in Redlark, where we felt compelled to disregard the Blue Book language altogether, and in the majority opinion, which appears to treat it as a substantial component of its analysis, might be thought to largely account for the different results then and now. As demonstrated, however, by the decisions of the five Courts of Appeals to address this issue, which have coalesced around a straightforward analysis of judicial deference to agency actions, the Blue Book language (with or without the Joint Committee summary) is not dispositive of the validity of the Treasury regulations (which is, after all, the issue before us). Rather, the Treasury regulations are ultimately validated as reasonably interpreting a facially ambiguous statute. The Blue Book language in question, while supportive of this result, is not essential to it. By unduly elevating the Blue Book’s role in our analysis, we risk giving encouragement to inventive counsel in future cases to troll deeply for other types of noncontrolling legislative materials that might be argued to betoken congressional intent.

Gerber and Gale, JJ., agree with this concurring opinion.