explaining that because “the parties [i.e., including Intermountain] refer to the temporary regulations [interpreting sections 6501(e)(1)(A) and 6229(c)(2)] in tandem . . . we will follow the parties’ lead and refer to the temporary regulations in tandem”
How later courts described this case
- explaining that because “the parties [i.e., including Intermountain] refer to the temporary regulations [interpreting sections 6501(e)(1)(A) and 6229(c)(2)] in tandem . . . we will follow the parties’ lead and refer to the temporary regulations in tandem”
- invalidating the temporary regulations, secs. 301.6229(c)(2)-1T, 301.6501(e)-1T, Temporary Proced. & Admin. Regs., 74 Fed. Reg. 49322-49323 (Sept. 28, 2009), on the ground that Colony, Inc. v. Commissioner, 357 U.S. 28, 78 S. Ct. 1033, 2 L. Ed. 2d 1119, 1958-2 C.B. 1005 (1958), is a Chevron U.S.A. Inc. v. Natural Res. Def. Council, 467 U.S. 837, 104 S. Ct. 2778, 81 L. Ed. 2d 694 (1984)(Chevron), step one holding, which "'forecloses the agency's interpretation' of sections 6229(c)(2) and 6501(e)(1)(A)↩".
- invalidating the temporary regulations, secs. 301.6229(c)(2)-lT, 301.6501(e)-lT, Temporary Proced. & Admin. Regs., 74 Fed. Reg. 49322-49323 (Sept. 28, 2009), on the ground that Colony, Inc. v. Commissioner, 357 U.S. 28 (1958), is a Chevron U.S.A. Inc. v. Natural Res. Def Council, 467 U.S. 837 (1984) (Chevron), step one holding, which “‘forecloses the agency’s interpretation’ of sections 6229(c)(2) and 6501(e)(1)(A)”
- rejecting the IRS's argument as circular and contrary to the plain language of the regulations
Written by the judges who cited it.
The opinion
Cohen, J., concurring: I concur in the result in this case. I would reach the same result, however, on narrower grounds relating to motions to vacate and reconsider or untimely motions to amend pleadings. Moreover, I would adopt petitioner’s distinction of Alioto v. Commissioner, T.C. Memo. 2008-185 , emphasizing the difference between congressional action there and what occurred here.
I would defer discussion of the difficult and divisive issues regarding retroactive regulations, temporary regulations promulgated without notice and an opportunity for comment, and the degree of deference to which these regulations and Treasury regulations generally are entitled. Many cases to be decided in the future, including those now on appeal, will necessarily present those issues. This petitioner should not bear the burden of relitigating this case on a playing field unilaterally redesigned by the adverse party after petitioner has prevailed at this level.
Gale, Thornton, and Marvel, JJ., agree with this concurring opinion.