Intermountain Insurance Service of Vail, Ltd. Liability Co. v. Commissioner

Halpern and Holmes, JJ., concurring in the result only:

I. Introduction

Respondent asks that, “in the interests of justice”, we vacate our order and decision so that we may reconsider our opinion “to correct a substantial error of law” resulting from the “unusual circumstance” of the Secretary’s issuing temporary regulations ostensibly overruling the authority on which we relied 23 days earlier in deciding this case. 1 Understandably, petitioner cries foul, arguing first and foremost that respondent cannot meet the high standards established by this Court for granting either a motion to vacate, see Taylor v. Commissioner, T.C. Memo. 1987-403 , or a motion to reconsider, see Estate of Quick v. Commissioner, 110 T.C. 440, 441 (1998). The majority finds no reason to resolve the merits of that argument, however, because, it says, even if it were to deny the motions on that ground, respondent might appeal our decision and, “[b]y neglecting the temporary regulations at this time[,] we would not be protecting the integrity of the judicial system * * * but merely failing to fully complete our work.” Majority op. p. 217. The majority then proceeds to hold that the temporary regulations are both prospective (and therefore inapplicable to this case) and, because they are unambiguously in conflict with the statute, invalid. Principles of judicial restraint counsel against making unnecessarily broad pronouncements when a case can be fully resolved on a narrower ground. Cf. Greater New Orleans Broad. Association, Inc. v. United States, 527 U.S. 173, 184 (1999) (discussing constitutional interpretation). Moreover, by discrediting the substance of the temporary regulations themselves, the majority has assured petitioner a trip to a Court of Appeals that he might avoid were we simply to stamp the motions denied or to dispose of them on grounds particular to this case, as Judge Cohen suggests. 2

Since the majority has chosen to address the effective date of the temporary regulations and their substantive validity, we feel compelled to comment. We are persuaded by neither of the majority’s analyses and would, before addressing any aspect of substantive validity, consider first the logically prior question of the procedural validity of the temporary regulations. With respect to that question, we believe that petitioner has the better argument.

II. Applicability of the Temporary Regulations

The majority concludes: “The plain meaning of the effective/applicability date provisions indicates that the temporary regulations do not apply to this case.” Majority op. p. 218. In fact, the temporary regulations provide: “The rules of this section apply to taxable years with respect to which the applicable period for assessing tax did not expire before September 24, 2009.” Secs. 301.6229(c)(2)-lT(b), 301.6501(e)-lT(b), Temporary Proced. & Admin. Regs., 74 Fed. Reg. 49322 , 49323 (Sept. 28, 2009). The relevant dates are as follows:

Tax year . 1999

Return filed . Sept. 15, 2000

FPAA mailed. Sept. 14, 2006

Petition filed . Dec. 4, 2006

Order/decision . Sept. 1, 2009

Temp. regs. effective date . Sept. 24, 2009

Section 6229(a) provides that, except as otherwise provided in the section, the period of limitations for making assessments with respect to partnership items is 3 years. Section 6229(c)(2) substitutes 6 years for 3 years in the case of a substantial omission of income. The period for making assessments — whether 3 years or 6 years — is suspended by the mailing of an FPAA until our decision in the case becomes final (or, if no petition is filed, the period to petition expires) and for 1 year thereafter. See sec. 6229(d). Because of respondent’s motion to vacate order and decision, our decision in this case has not yet become final.

The majority claims: “The plain meaning of the temporary regulations’ effective/applicability date provisions indicates that the temporary regulations do not apply to this case because the applicable period of limitations expired before September 24, 2009.” Majority op. p. 220. According to respondent, the applicable period of limitations did not expire before September 24, 2009, because, as a result of the temporary regulations, “the applicable period for assessing tax” is the 6-year period prescribed by section 6229(c)(2), which 6-year period had not run on September 14, 2006, when the FPAA was mailed. The filing of the petition then suspended the running of that 6-year period to and beyond September 24, 2009. The majority counters: “We concluded in our September 1, 2009, opinion [which antedates the September 24, 2009, temporary regulations] that the general 3-year limitations period of section 6501(a) was the applicable period for assessing tax in this case and that it had expired some time before September 14, 2006.” Majority op. p. 218. It adds: “The plain meaning of the effective/applicability date provisions indicates that the temporary regulations do not apply to this case.” Majority op. p. 218.

Since the temporary regulations do not define the term “applicable period for assessing tax” (by stating whether the regulation itself is to be taken into account in determining the applicable period), the meaning of the term is less than plain, so it must be construed. What ground is there, then, for the majority to conclude that the effective date language of the temporary regulations precludes their application to this case? In other words, how can it construe the expression “the applicable period for assessing tax” to mean “the 3-year period for assessing tax”? Perhaps the majority has in mind section 7805(b), as applicable to the temporary regulations. 3 As so applicable, the section reads:

SEC. 7805(b). Retroactivity of Regulations or Rulings — The Secretary may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect. [Sec. 7805(b) (pre-1996).]

We have said: “Under section 7805(b) [pre-1996], there is a presumption that every regulation will operate retroactively, unless the Secretary specifies otherwise.” UnionBanCal Corp. v. Commissioner, 113 T.C. 309, 327 (1999), affd. 305 F.3d 976 (9th Cir. 2002). Here, undoubtedly, the Secretary did specify something with respect to the retroactivity (applicability) of the temporary regulations; viz, the rules therein “apply to taxable years with respect to which the applicable period for assessing tax did not expire before September 24, 2009.” Secs. 301.6229(c)(2)-1T(b), 301.6501(e)-1T(b), Temporary Proced. & Admin. Regs., supra. Perhaps the majority believes that the Secretary drafted the temporary regulations intending to limit retroactivity to taxable years for which the 3-year period of limitations had not expired on September 24, 2009, but he (unlike the majority) realizes that that meaning is less than plain and now has changed his mind and is taking advantage of his lack of clarity to pull a fast one. There is of course no evidence to support that dubious theory. We believe that the Secretary meant the temporary regulations to apply if either the 3-year or 6-year period of limitations were open on September 24, 2009, but that he was inartful in saying so. Such a reading is supported by IRS Chief Counsel Notice CC-2010-010 (Nov. 23, 2009), which, in relevant part, states:

The temporary regulations apply to taxable years with respect to which the applicable period of limitations for assessing tax did not expire before September 24, 2009. Accordingly, the temporary regulations apply to any docketed Tax Court case in which the period of limitations under sections 6229(c)(2) and 6501(e)(1)(A), as interpreted in the temporary regulations, did not expire with respect to the tax year at issue, before September 24, 2009, and in which no final decision has been entered. [Emphasis added.]

If that is what the Secretary meant, then what ground can there be for the majority to conclude that the temporary regulations do not apply to this case because “the applicable period for assessing tax” was a 3-year period that expired before September 24, 2009? The possibilities appear to be that the majority believes either that (1) the Secretary has no authority under any circumstance to overrule the Supreme Court’s interpretation of a statute (which implicates the Supreme Court’s decision in Natl. Cable & Telecomms. Association v. Brand X Internet Servs., 545 U.S. 967 (2005)), (2) the Secretary has no authority retroactively to overrule the Supreme Court (also implicating Brand X), or (3) even if he does have those authorities, under the so-called law of the case doctrine, we need not acknowledge the temporary regulations in this case. If the majority believes any of those things, then it should explain itself. If not, then it should abandon its effective date analysis (which the majority itself describes only as “a plausible ground to rule against respondent’s motions”, majority op. p. 220) and address petitioner’s well-founded argument that respondent cannot satisfy the high standards established by this Court for granting either a motion to vacate or a motion to reconsider or simply ground its decision on its reason (which we question) for finding the temporary regulations invalid.

III. The Deference Muddle

In Bakersfield Energy Partners, LP v. Commissioner, 568 F.3d 767, 778 (9th Cir. 2009), affg. 128 T.C. 207 (2007), the Ninth Circuit acknowledged that the Supreme Court in Colony, Inc. v. Commissioner, 357 U.S. 28 (1958), had

rejected the same interpretation the IRS is proposing in this case. The IRS may have the authority to promulgate a reasonable reinterpretation of an ambiguous provision of the tax code, even if its interpretation runs contrary to the Supreme Court’s “opinion as to the best reading” of the provision. Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 982-83 , 125 S.Ct. 2688 , 162 L.Ed.2d 820 (2005); accord Swallows Holding, Ltd. v. Comm’r, 515 F.3d 162, 170 (3d Cir. 2008). We do not.

We think this is a signal that courts should be especially careful about not deferring to new regulations that address this old problem. Instead, the majority engages in a fullblown analysis of the substantive validity of the regulations even after concluding they do not apply because the regulations are prospective only. The analysis has three parts;

• Sidestepping the longrunning issue of whether Treasury regulations are entitled to deference under Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837 (1984), Nat. Muffler Dealers Association, Inc. v. United States, 440 U.S. 472 (1979), or merely Skidmore v. Swift & Co., 323 U.S. 134 (1944);

• an assertion that Chevron step one allows, and perhaps requires, consideration of legislative history in determining “whether Congress has directly spoken to the precise question at issue”, Chevron, 467 U.S. at 842-843 ; and

• an analysis of the additional question we have to answer after Brand X, 545 U.S. at 984 : Did the Supreme Court hold in Colony that its interpretation of the key phrase “omits from gross income an amount properly includible therein” is “the only permissible reading” of the statute?

We agree with the majority that it is wise for us as a trial court to avoid the issue of what level of deference to give this regulation. See Swallows Holding, Ltd. v. Commissioner, 126 T.C. 96, 180-181 (2006) (Holmes, J., dissenting) (listing circuit conflicts), vacated and remanded 515 F.3d 162 (3d Cir. 2008) (holding regulations entitled to Chevron deference).

We are particularly cautious about the majority’s possible reliance on Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477 (1989), see majority op. note 14, as an additional justification for invalidating the regulations. We agree of course that “the Supreme Court has advised lower courts that ‘if a precedent of this Court * * * has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the * * * [lower courts] should follow the case which directly controls”. See majority op. note 14. But this rule, which the Ninth Circuit alluded to in Bakersfield, is not what is at issue here. It is not our Court, but the Secretary, who is reaching a different conclusion about the phrase “omits from gross income an amount properly includible therein”. The validity of the regulation after Brand X cannot depend entirely on whether prior caselaw conflicts with a later regulation. As the Tenth Circuit recently reasoned: “When a court tentatively resolves an ambiguity in a statute that an agency is empowered to administer, such a resolution carries the force of law until an agency issues a definitive interpretation of the kind that would ordinarily warrant Chevron deference.” Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1246 (10th Cir. 2008) (upholding regulation contrary to Supreme Court decision after applying Brand Z). We simply can’t reasonably assert, a quarter-century after Chevron and, now, after Brand X, that “courts have traditionally determined the meaning of statutes,” majority op. note 12, if by that we mean that an agency with regulatory power cannot definitively resolve ambiguous statutory language. 4

We think that the problems of how to use legislative history in a Chevron analysis and the effect of Brand X on reinterpreting old Supreme Court tax cases are both much more complicated than the majority lets on.

A.

The Chevron test seems quite simple. Step one: Determine “whether Congress has directly spoken to the precise question at issue.” Chevron USA, Inc. v. Natural Res. Def. Council, 467 U.S. at 842 . If so, stop. Step two: If Congress has not directly spoken to the question or if what it has said is ambiguous, then determine if the agency’s interpretation is “based on a permissible construction of the statute.” Id. at 843 .

But Chevron's simplicity ends there. 5

We focus first on the use of legislative history in Chevron step one: Chevron tells lower courts to use the “traditional tools of statutory construction” to determine if Congress has spoken on the precise issue. Id. at 843 n.9. But how does Congress “speak”? Is it only in the enacted language and its context within a statute, or does it include committee reports, floor speeches, staff-prepared material, and postenactment commentary in later Congresses? And if courts are directed to employ legislative history, when can they do so — only if the text is ambiguous; only if it shows congressional intent clearly contrary to the plain meaning of the text; or whenever it would be helpful in figuring out the meaning, or maybe the purpose, of the act?

These are far-from-settled issues. As other courts have noted, the Supreme Court itself has sent what seem to be mixed signals:

• No consideration at step one — Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 557 U.S. _ , _, 129 S. Ct. 2458, 2469 (2009) (implying the statutory text is how Congress speaks directly on an issue); Natl. R.R. Passenger Corp. v. Boston & Me. Corp., 503 U.S. 407, 417 (1992) (comparing the agency’s construction only to the statutory text at step one); K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 291 (1988) (“If the agency regulation is not in conflict with the plain language of the statute, a reviewing court must give deference to the agency’s interpretation of the statute.” (citing United States v. Boyle, 469 U.S. 241 , 246 n.4 (1985)));

• consideration only if the text is unclear — Zuni Pub. Sch. Dist. No. 89 v. Dept. of Educ., 550 U.S. 81, 93 (2007) (“if the intent of Congress is clear and unambiguously expressed by the statutory language at issue, that would be the end of our analysis.”); Dept. of HUD v. Rucker, 535 U.S. 125, 132 (2002) (“reference to legislative history is inappropriate when the text of the statute is unambiguous”); Sutton v. United Air Lines, Inc., 527 U.S. 471, 482 (1999) (declining to consider legislative history when text was clear);

• legislative history used at step one as a traditional tool— FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 130-155 (2000); Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 697-699 (1991); Pension Benefit Guar. Corp. v. LTV Corp., 496 U.S. 633, 649-650 (1990).

There are even a fair number of cases that make it difficult to discern whether the Court is consulting legislative history at step one or step two. 6

The majority does acknowledge this difficulty, but discerns a recent trend toward using legislative history in some way in step one, majority op. note 18. We think the matter is less clear. Here’s the current circuit court breakdown:

• First Circuit—Perez-Olivo v. Chavez, 394 F.3d 45 , 50 n.2 (1st Cir. 2005) (okay in step one “merely * * * to confirm that it does not resolve the [statutory] ambiguity”); Succar v. Ashcroft, 394 F.3d 8, 22-23 (1st Cir. 2005) (okay in step one);

• Second Circuit—Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 122-124 (2d Cir. 2007) (noting reluctance to rely on legislative history in step one, but then doing it);

• Third Circuit—United States v. Geiser, 527 F.3d 288, 293 (3d Cir. 2008) (excludes legislative history in step one);

• Fourth Circuit—Compare Dominion Res., Inc. v. United States, 219 F.3d 359, 365 (4th Cir. 2000) (okay in step one), and Brown & Williamson Tobacco Corp. v. FDA, 153 F.3d 155, 162 (4th Cir. 1998) (same), affd. 529 U.S. 120 (2000), with Granutec, Inc. v. Shalala, 46 U.S.P.Q.2d 1398 , 1404 (4th Cir. 1998) (unpublished decision) (only in step two);

• Fifth Circuit—Sierra Club v. U.S. FWS, 245 F.3d 434 , 443 n.51 (5th Cir. 2001) (okay in step one (citing INS v. Cardoza-Fonseca, 480 U.S. 421, 449 (1987)));

• Sixth Circuit—Compare Johnson City Med. Ctr. v. United States, 999 F.2d 973, 976 (6th Cir. 1993) (okay in step one even if statute is clear), with Alliance for Cmty. Media v. FCC, 529 F.3d 763, 778 (6th Cir. 2008) (consider in step two);

• Seventh Circuit—Compare Univ. of Chi. Hosps. v. United States, 545 F.3d 564, 569 (7th Cir. 2008) (refusing to consider legislative history after finding statute unambiguous), with Khan v. United States, 548 F.3d 549, 556 (7th Cir. 2008) (“we proceed to Chevron’s second step. * * * In this step, we can take into account extrinsic sources such as legislative history.”);

• Eighth Circuit—Compare Ark. AFL-CIO v. FCC, 11 F.3d 1430 , 1440 (8th Cir. 1993) (allows legislative history in step one, but only if intent is not clear from the statute’s plain language), with Mayo Found. for Med. Educ. & Research v. United States, 568 F.3d 675, 681-682 (8th Cir. 2009) (considering legislative history in step two);

• Ninth Circuit—Compare Natural Res. Def. Council, Inc. v. U.S. EPA, 526 F.3d 591, 603 (9th Cir. 2008) (considering legislative history in step one), with Schneider v. Chertoff, 450 F.3d 944 , 955 n.15 (9th Cir. 2006) (courts cannot consider legislative history in step one);

• Tenth Circuit—Anderson v. U.S. DOL, 422 F.3d 1155, 1180 (10th Cir. 2005) (okay in step one); Cliffs Synfuel Corp. v. Norton, 291 F.3d 1250, 1257 (10th Cir. 2002) (same); Utah v. Babbitt, 53 F.3d 1145, 1148 (10th Cir. 1995) (same);

• Eleventh Circuit—Guar. Fin. Servs., Inc. v. Ryan, 928 F.2d 994 , 1003-1004 (11th Cir. 1991) (use in step one after finding statute ambiguous);

• D.C. Circuit—Sierra Club v. EPA, 551 F.3d 1019, 1027 (D.C. Cir. 2008) (legislative history okay in step one even to create ambiguity); Am. Bankers Association v. Natl. Credit Union Admin., 271 F.3d 262, 267 (D.C. Cir. 2001) (same); Natural Res. Def. Council, Inc. v. Browner, 57 F.3d 1122, 1126-1127 (D.C. Cir. 1995) (same); and

• Federal Circuit—Amber-Messick v. United States, 483 F.3d 1316, 1323-1324 (Fed. Cir. 2007) (used in both steps); Star-Glo Associates, LP v. United States, 414 F.3d 1349, 1356 (Fed. Cir. 2005) (used in step one).

B.

The fundamental problem in this area — and it’s not one that we as a trial court can possibly solve on our own — is that legislative history is a “traditional tool of statutory interpretation” most commonly used when the language of a statute is ambiguous on some point. But if the language of a statute is ambiguous, Chevron tells us to read that ambiguity as a delegation of authority to fill the resulting gap with a regulation. Looked at this way, Colony’s resort to legislative history in the first place shows a gap that the Secretary is ipso facto allowed to fill. If so, then the Supreme Court’s sentence “it cannot be said that the language is unambiguous”, Colony, Inc. v. Commissioner, 357 U.S. at 33 , triggered not only that Court’s own look at legislative history, but the authority of the Secretary to issue the regulation we have before us.

One way to read the many decisions using legislative history in step one of Chevron is as another check on agency discretion — another way of finding a lack of ambiguity in congressional intent. But the confusion in this area becomes a muddle when one adds in the analysis of whether a pre-Brand X precedent that uses legislative history is an analysis that, under Brand X, precludes the choice made by the agency in a regulation. Pay particular attention to the passage from Brand X that the majority quotes, majority op. p. 221: “A court’s prior judicial construction of a statute trumps an agency construction otherwise entitled to Chevron deference only if the prior court decision holds that its construction follows from the unambiguous terms of the statute and thus leaves no room for agency discretion.” Brand X, 545 U.S. at 982 (emphasis added).

It is at least possible that the emphasized language is a direction to lower courts to distinguish pre-Brand X precedents that resorted to legislative history from those that relied on plain-language analysis as a way of distinguishing between precedents that allow for their own regulatory supersession from those that do not. It would suggest in this case the Supreme Court’s use of legislative history in Colony would not trump an agency construction.

Consider AARP v. EEOC, 390 F. Supp. 2d 437 (E.D. Penn. 2005), affd. on other grounds 489 F.3d 558 (3d Cir. 2007). In an earlier case, the Third Circuit held that the Age Discrimination in Employment Act banned treating retirees who were eligible for Medicare differently from those who were not in providing health benefits. See Erie County Retirees Association v. County of Erie, 220 F.3d 193 (3d Cir. 2000). The Court carefully reviewed the legislative history to reach its conclusion. See id. at 205-208 .

Then out popped a contrary regulation from the EEOC. The District Court judge faced with the regulation-vs.-precedent question reasoned that

Brand. X clarified the Chevron standard itself. In applying Chevron’s first step to the regulation at issue in Brand X, the Supreme Court did not ask merely whether Congress had “spoken to the precise question at issue,” Chevron, 467 U.S. at 843 , * * * but rather “whether the statute’s plain terms ‘directly address the precise question at issue.’” Brand X, 125 S.Ct. at 2702 * * * [AARP v. EEOC, 390 F. Supp. 2d at 445 .]

The District Court then analyzed the pre-regulation precedent on point, and concluded that “Like its arguments from legislative history, the * * * [Third Circuit’s] appeals to general congressional intent and the balancing of competing policy considerations would seem unnecessary if its decision were the only permissible construction of the statute.” Id. at 450 n.10; see also, e.g., Mayo Found. for Med. Educ. & Research v. United States, 503 F. Supp. 2d 1164, 1174 (D. Minn. 2007) (drawing similar distinction in light of Brand X), revd. 568 F.3d 675 (8th Cir. 2009).

AAlRP is certainly not the last possible word on this subject. There may well be a distinction between using legislative history to supply the meaning of a particular word or phrase and using legislative history to discern the purpose or goal of the statute in which Congress placed that word or phrase so as to be able to best construe it in a particular case. Judge Easterbrook, in his landmark taxonomy on uses of legislative history, In re Sinclair, 870 F.2d 1340, 1342 (7th Cir. 1989), suggested that legislative history may be used as a dictionary of sorts — to determine Congress’s objective rather than subjective intent. Id. at 1343 (“‘we ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used.’” (quoting Holmes, “The Theory of Legal Interpretation”, 12 Harv. L. Rev. 417 , 417-419 (1899))). Seen in this light, legislative history should be used to discover the statute’s “original meaning”, rather than the intent of the individual congressman. Id. at 1343 (“An opinion poll revealing the wishes of Congress would not translate to legal rules”).

Used in this way, legislative history in step one may present fewer problems. Rereading Colony, Inc. v. Commissioner, 357 U.S. 28 (1958), with this distinction in mind might lead one to conclude that the Court was using legislative history to discern the best reading of ambiguous statutory language in light of the specific problems its drafters had in mind. See id. at 33-35 . If so, the holding of Colony is not that “omission” necessarily means “omission of a particular item”, but only that that’s the best reading until and unless a regulation clarifying the admitted ambiguity of “omits from gross income an amount properly includible therein” is validly issued.

New courts have explicitly considered and employed this possible distinction, and we would not necessarily advocate its use here. The conclusion we would draw is simply that the rules for reexamining precedents after Brand X are quite uncertain. We don’t believe it is beyond the capability of the Tax Court to address such issues with the necessary subtlety, but the majority doesn’t even try.

We won’t try either, since we prefer to climb onto firmer ground.

IV. Procedural Validity of the Temporary Regulations

That firmer ground, and the reason we are able to concur in our colleagues’ result, is that these regulations are procedurally invalid under the Administrative Procedure Act (APA), 5 U.S.C.A. secs. 551-559 , 701-706 (West 2007 & Supp. 2009), as amended by the Patient Protection & Affordable Care Act, Pub. L. 111-148, sec. 6402 , 124 Stat. 756 (2010), which governs rulemaking even by the Secretary.

The APA requires agencies to publish contemplated rules to allow the public to make comments on their content and effect. 5 U.S.C. sec. 553 (b) and (c) (2006). To ensure measured, informed rulemaking, the agency is then required to take those comments into consideration before promulgating a final rule. Id. sec. 553(c). The publication of the rule must occur “not less than 30 days before its effective date”. Id. sec. 553(d). The agency must also provide “reference to the legal authority under which the rule is proposed”. Id. sec. 553(b)(2). And these minimum requirements may be modified or superseded only if Congress does so expressly. Id. sec. 559.

In the case of these regulations, the Secretary stated his legal authority for the rules — the section 6501(e) regulation was issued under section 7805 and the section 6229 regulation was issued under sections 7805 and 6230(k). The Secretary didn’t publish the regulations 30 days before their effective date, but respondent argues — and the majority essentially concedes — that the Secretary’s power to make retroactive rules under section 7805(b) (pre-1996) applies. But the Secretary did not seek comments before publishing these temporary regulations, nor did he claim good cause for skipping this step. 7

Respondent first argues that the APA itself excuses his failure to put the regulations through notice and comment. The Administrative Procedure Act, 5 U.S.C. section 553 (b), provides:

this subsection does not apply—

(A) to interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice * * *

The APA provides similar exemptions from the prepublication requirement. Id. sec. 553(d).

Respondent does not rely on any argument that these regulations are mere statements of policy or rules of Treasury’s organization, procedure, or practice. For the regulations to be valid, then, we must find they are interpretive rules, or we have to accept respondent’s alternative argument that Congress waived the APA’s notice-and-comment requirement for temporary tax regulations.

A. The Interpretive Exception

The Treasury Decision containing the regulations, without claiming a particular exception, 8 states: “It also has been determined that section 553(b) of the * * * [APA] does not apply to these regulations.” T.D. 9466, 74 Fed. Reg. 49321 , 49322 (Sept. 28, 2009). Respondent argues this is because these regulations are interpretive rules (as opposed to legislative or substantive rules), merely clarifying the phrase “omitted from gross income” without changing existing law. Respondent also argues that these regulations are interpretive because they were issued pursuant to the general grant of authority in section 7805 rather than under a specific grant of authority directing the Secretary to issue a regulation with specified content.

The Tax Court often labels as “interpretive” those regulations that the Secretary issues under the general authority of section 7805(a), in contrast to “legislative” regulations, by which we and other tax specialists mean those regulations issued under a more specific authority from Congress. 9

But “interpretive” means something different in administrative law. Berg, “Judicial Deference to Tax Regulations: A Reconsideration in Light of National Cable, Swallows Holding, and Other Developments”, 61 Tax Law. 481 , 486-487 (2008) (“the Administrative Procedure Act (apa) draws the line between legislative and other regulations differently [than tax law].” (fn. ref. omitted)). In administrative law, “interpretive” is a label reserved for regulations that “advise the public of the agency’s construction of the statutes and rules which it administers.” Clark, U.S. Dept, of Justice, Attorney General’s Manual on the Administrative Procedure Act 39 (1947), available at http://www.law.fsu.edu/library/ admin/1947cover.html (providing working definitions). 10 Substantive or legislative rules, on the other hand, are “rules, other than organizational or procedural * * * issued by an agency pursuant to statutory authority and which implement the statute * * *. Such rules have the force and effect of law.” Id.; see also Batterton v. Francis, 432 U.S. 416 , 425 n.9 (1977) (and cases cited). In other words, legislative rules are those that are binding. Chrysler Corp. v. Brown, 441 U.S. 281 , 301-302 & n.31 (1979); Hickman, “Coloring Outside the Lines: Examining Treasury’s (Lack of) Compliance With Administrative Procedure Act Rulemaking Requirements”, 82 Notre Dame L. Rev. 1727 , 1762-1763 (2007) (Hickman, “Coloring Outside the Lines”); Merrill & Watts, “Agency Rules With the Force of Law: The Original Convention”, 116 Harv. L. Rev. 467 , 476-477 (2002).

Courts have applied various tests to distinguish between legislative and interpretive rules, but the D.C. Circuit’s test in Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993), has become the “dominant standard”. Hickman, “Coloring Outside the Lines”, supra at 1766; see also 1 Pierce, Administrative Law Treatise, sec. 6.4, at 454 (5th ed. 2010) (citing adoption of the test in six circuits including the Tenth and D.C. Circuits). 11 Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d at 1109, relying on both caselaw and the Attorney General’s Manual, held that a rule is legislative if Congress has given the agency authority to issue rules with the force of law and the agency intended to use that authority. The court listed four ways an agency could show it intended to issue legislative rules:

(1) whether in the absence of the rule there would not be an adequate legislative basis for enforcement action or other agency action to confer benefits or ensure the performance of duties, (2) whether the agency has published the rule in the Code of Federal Regulations, (3) whether the agency has explicitly invoked its general legislative authority, or (4) whether the rule effectively amends a prior legislative rule. If the answer to any of these questions is affirmative, we have a legislative, not an interpretive rule. [Id. at 1112.]

These four ways of finding agency intent have developed over time. A subsequent case in the D.C. Circuit rejected the second way, calling publication in the CFR merely a “snippet of evidence of agency intent”, and rejecting a claim that rules were legislative based on publication alone. 12 Health Ins. Association of Am., Inc. v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994). The Ninth Circuit added a look into whether a rule binds “tribunals outside the agency.” Erringer v. Thompson, 371 F.3d 625, 631 (9th Cir. 2004) (citing Hemp Indus. Association v. Drug Enforcement Admin., 333 F.3d 1082, 1088 (9th Cir. 2003)). Other cases have relied upon a criterion discussed but not applied in American Mining — that if an agency issues a rule interpreting a legislative rule, the underlying legislative rule cannot be too vague or open-ended to support the interpretation. See, e.g., Gonzales v. Oregon, 546 U.S. 243 (2006).

Though American Mining’s, test is not universally accepted, the case reconciles the precedents well and is accepted by at least two of the three potential appellate courts here. See, e.g., U.S. Telecomm. Association v. FCC, 400 F.3d 29 , 34-35 (D.C. Cir. 2005); Mission Group Kan., Inc. v. Riley, 146 F.3d 775, 784 (10th Cir. 1998). 13

1. Does the Secretary Have Authority To Issue Rules With the Force of Law?

American Mining asks first whether a particular agency has the authority to issue rules having the force of law. The Secretary does — Congress delegated authority to him in various Code sections to create rules and regulations. Section 7805(a) contains the broadest of these delegations, allowing promulgation of “all needful rules and regulations for the enforcement of this title”. (“[T]his title” in section 7805(a) refers the entire Internal Revenue Code.) Such regulations carry the force of law, because the Code imposes penalties for failing to follow them. Sec. 6662(b); see also Merrill & Watts, supra at 477.

And it is also obvious that the regulations in this case, if valid, would bind both respondent and petitioner. We have held that both temporary and final regulations have the force of law, and we give both the same weight. See Schaefer v. Commissioner, 105 T.C. 227, 229 (1995). Both temporary and final regulations give rise to penalties. Sec. 6662(b); sec. 1.6662-3(b)(2), Income Tax Regs.; Hickman, “Coloring Outside the Lines”, supra at 1738-1739. And both general- and specific-authority regulations also give rise to penalties, so the Secretary’s issuance of these regulations under section 7805 makes no difference. Hickman, “Coloring Outside the Lines”, supra at 1762-1763 (“Regulations that bind both the government and regulated parties are legislative, whether promulgated pursuant to specific or general statutory authority.” (citing Shalala v. Guernsey Meml. Hosp., 514 U.S. 87, 99 (1995), and several other sources)).

We would therefore conclude that both section 7805(a) and the various more specific Code sections delegate legislative authority to the Secretary.

2. Did the Secretary Intend To Issue Regulations With the Force of Law?

The second part of the American Mining test asks whether the agency intended the regulations to have the force of law. If we go through American Mining’s list of the specific ways an agency can show it intends a rule to have the force of law, we find that two are present here. The first is the Secretary’s invocation of his general authority to issue regulations, plainly noted in the Treasury Decision containing the regulations themselves. Respondent claims that the regulations are interpretive under the APA, but the Secretary’s cited source of authority doesn’t quite match that sentiment — he promulgated one of these regulations explicitly under section 7805 alone and the other under both section 7805 and section 6230(k), knowing that regulations issued under these sections carry the force of law.

The second is that these regulations effectively changed (or at least tried to change) existing law. American Mining phrased this factor as amending “a prior legislative rule.” This leads to another question left unanswered and unaddressed by the majority: Does Brand X require an agency’s interpretation to be embodied in a legislative rather than an interpretive rule to trump an existing judicial interpretation? Even assuming an agency interpretation can displace the Supreme Court’s, see Hernandez-Carrera v. Carlson, 547 F.3d 1237 (10th Cir. 2008), we think the answer must be yes, in part because when there is otherwise binding judicial precedent, an agency interpretation asserting a contrary interpretation amounts to a change in the law. 14 Certainly, as the Ninth Circuit recognized in Bakersfield, 568 F.3d at 768, 778 , a Supreme Court decision such as Colony binds lower courts at least until something changes. Respondent wants us to vacate our otherwise final decision, which he could not logically ask us to do without implying that the Secretary intended that these new rules have the force of law.

But we don’t need to puzzle this out. American Mining tells us: “If the answer to any of these questions is affirmative, we have a legislative, not an interpretive rule.” Am. Mining, 995 F.2d at 1112. So even if our reasoning on this second way of finding agency intent is wrong, it remains true that the Secretary explicitly invoked his legislative authority in promulgating these regulations and Congress entrusted him with that power. That makes them legislative.

Thus, although the regulations may be “interpretive” according to the common usage in the sense that they set forth respondent’s interpretation of the underlying statutes, and “interpretive” according to tax-law usage in the sense that one of them was issued under section 7805 alone, they are not “interpretive” under the APA’s exception to the notice- and-comment requirements because they are meant to bind the public, which the Secretary has the power to do. 15

B. Section 7805(e) and the APA

Though the Secretary did not subject the regulations to notice and comment, he did issue identical proposed regulations and a Notice of Proposed Rulemaking (NPRM) at the same time as the temporary regulations, as required by section 7805(e)(1). This section directs the Secretary, when issuing temporary regulations, to issue a simultaneous NPRM and sets a 3-year expiration date for all temporary regulations. The legislative history of that section, respondent says, shows that Congress was aware of the Secretary’s procedures of issuing temporary regulations that were effective immediately but without notice and comment. 16 He says that Congress implicitly okayed that process by limiting the temporary regulations to 3 years and ensuring that the Secretary issued an NPRM at the same time. Even though this violates the APA, he justifies it by arguing that section 7805(e) conflicts with the APA, and in the battle of the statutes, a specific statute trumps a general one. See Bulova Watch Co. v. United States, 365 U.S. 753, 758 (1961).

We do not agree. First we note that nothing in the text of the statute suggests that the notice-and-comment requirement has been waived, nor does the legislative history state that it has. The legislative history does note that the Secretary commonly issued temporary regulations with immediate effect, but this alone hardly suggests Congress meant to waive notice and comment for all temporary regulations. 17 The legislative history does not even mention the APA, and both the Supreme Court and the APA itself provide that exceptions to the APA’s terms cannot be inferred — much less inferred from an absence in the legislative history:

Recognizing the importance of maintaining a uniform approach to judicial review of administrative action * * * we have closely examined the * * * claim for an exception to that uniformity. * * * [Congress has specified] in the APA that “no subsequent legislation shall be held to supersede or modify the provisions of this Act except to the extent that such legislation shall do so expressly.” 5 USC § 559 . * * * The APA was meant to bring uniformity to a field full of variation and diversity. * * * [Dickinson v. Zurko, 527 U.S. 150 , 154—155 (1999).]

Respondent may think that section 7805(e) makes him special when it comes to rulemaking, but the APA makes it clear that he is not.

Giving the public the opportunity to participate through notice and comment is important in giving regulations legitimacy. See United States v. Mead Corp., 533 U.S. 218, 230 (2001); Christensen v. Harris County, 529 U.S. 576, 587 (2000); Chrysler Corp. v. Brown, 441 U.S. at 316 ; see also Hickman, “A Problem of Remedy: Responding to Treasury’s (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements”, 76 Geo. Wash. L. Rev. 1153 , 1201 (2008) (Hickman, “A Problem of Remedy”) (“The APA and its notice-and-comment rulemaking procedures reflect congressional goals of simultaneously facilitating government rulemaking and protecting individual rights through public participation.”); id. at 1204 (“While perhaps less than ideal, the APA notice-and-comment process, coupled with judicial review of the agency’s adherence to that process, serves as a second-best proxy for the legislative process when Treasury or any other agency seeks to bind the public with regulations having the force and effect of the statutes they purport to interpret.”).

Giving the public a chance to comment only after making the regulations effective does not comply with the APA. See, e.g., Chrysler Corp. v. Brown, 441 U.S. at 315 ; Paulsen v. Daniels, 413 F.3d 999, 1005 (9th Cir. 2005) ("It is antithetical to the structure and purpose of the APA for an agency to implement a rule first, and then seek comment later.”). And courts invalidate even final regulations when an agency does this. 18 See, e.g., U.S. Steel Corp. v. U.S. EPA, 595 F.2d 207, 214-215 (5th Cir. 1979). But see Fed. Express Corp. v. Mineta, 373 F.3d 112 (D.C. Cir. 2004).

Because these regulations were issued under sections 6230(k) and/or 7805, they are binding and legislative as a matter of administrative law. We would therefore invalidate them on procedural grounds for failure to comply with the APA.

A court should not entirely ignore invalidated regulations — but we cannot give them binding force. 19 See Chrysler Corp. v. Brown, 441 U.S. at 313 (“regulations subject to the APA cannot be afforded the ‘force and effect of law’ if not promulgated pursuant to the statutory procedural minimum found in that Act”); Hickman, “A Problem of Remedy”, supra at 1197 n.199 (suggesting invalidated regulations may be similar in force to proposed regulations, which set forth the agency’s views but do not bind courts). Respondent’s problem here is that we have already considered his position in other cases, and we have rejected it. Bakersfield Energy Partners, LP v. Commissioner, 128 T.C. 207 (2007); Intermountain Ins. Serv. of Vail, LLC v. Commissioner, T.C. Memo. 2009-195 . He needs to have new regulations that do have binding force.

These don’t, and we therefore see no compelling reason to vacate our decision in Intermountain. For that reason, we concur with the majority’s result.

The temporary regulations in question (the temporary regulations) are secs. 301.6229(c)(2)-1T and 301.6501(e)-1T, Temporary Proced. & Admin. Regs., 74 Fed. Reg. 49322 (Sept. 28, 2009).

In its haste to protect the integrity of the judicial system and to fully complete its work, the majority “question[s]” petitioner’s attempts to distinguish Alioto v. Commissioner, T.C. Memo. 2008-185 , but it does not stop to explain or to resolve those questions. Majority op. p. 217.

In 1996, sec. 7805(b) was amended by the Taxpayer Bill of Rights 2, Pub. L. 104-168, sec. 1101 (a), 110 Stat. 1468 (1996), to limit the retroactive application of Treasury tax regulations. The 1996 amendment is effective with respect to regulations that relate to statutory provisions enacted on or after July 30, 1996. See id. sec. 1101(b), 110 Stat. 1469 . The parties seem to agree (and the majority does not dispute) that the 1996 amendment does not apply to the temporary regulations since the statutory provisions in question, secs. 6229(c)(2) and 6501(e)(1)(A), were enacted before that date. Sec. 301.6229(c)(2)-1T, Temporary Proced. & Admin. Regs., supra, was issued under the authority of both secs. 6230(k) and 7805, while sec. 301.6501(e)-1T, Temporary Proced. & Admin. Regs., supra, was issued solely under the authority of sec. 7805. T.D. 9466, 74 Fed. Reg. 49322 .

Hernandez-Carrera v. Carlson, 547 F.3d 1237, 1246 (10th Cir. 2008), seems to be the first case to test Brand Xs effect on Supreme Court precedent. But we ought not to simply state that we take no position on the question in one footnote, majority op. note 15, while seeming to assert the contrary view in another, majority op. note 14.

Commentators have not been kind to judges. See, e.g., Sunstein, “Chevron Step Zero”, 92 Va. L. Rev. 187 , 221 (2006) (caselaw in “chaos”); Eskridge & Baer, “The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan”, 96 Geo. L.J. 1083 , 1157 (2008) (caselaw “a mess”); Hickman, “A Problem of Remedy: Responding to Treasury’s (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements”, 76 Geo. Wash. L. Rev. 1153 , 1200 (2008) (Hickman, “A Problem of Remedy”) (“a mess”); Beermann, “End the Failed Chevron Experiment Now: How Chevron Has Failed and Why It Can and Should Be Overruled”, 42 Conn. L. Rev. 779 , 808 (2010) (“confusing”); Murphy, “Judicial Deference, Agency Commitment, and Force of Law”, 66 Ohio St. L.J. 1013 , 1022 (2005) (a “confusing mess”).

As numerous commentators have concluded, the application of Chevron has developed not necessarily in a consistent direction. See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 131 (1985) (“our review is limited to the question whether it is reasonable, in light of the language, policies, and legislative history of the Act”); Chem. Manufacturers Association v. Natural Res. Def. Council, Inc., 470 U.S. 116, 126 (1985) (“we conclude that the statutory language does not foreclose the agency’s view of the statute. We should defer to that view unless the legislative history or the purpose and structure of the statute clearly reveal a contrary intent on the part of Congress.”). See generally Coke v. Long Island Care at Home, Ltd., 376 F.3d 118, 127-129 (2d Cir. 2004) (describing the problem and considering legislative history in both steps, but “without attaching primacy” in step one), vacated 546 U.S. 1147 (2006).

When Treasury regulation drafters find good cause to skip notice and comment, Internal Revenue Manual pt. 32.1.5.4.7.5.1(4) (Aug. 11, 2004) directs them to include the following text in the regulations: “‘These regulations are necessary to provide taxpayers with immediate guidance. Accordingly, good cause is found for dispensing with notice and public comment pursuant to 5 U.S.C. 553(b) and (c)”\ This thin a justification might or might not work, but it is absent from these regulations or the related Treasury Decision. See T.D. 9466, 74 Fed. Reg. 49321 (Sept. 28, 2009). Respondent concedes in his reply brief that he is not relying on this exception.

The Treasury Decision does say thafc the regulations contain a “reasonable interpretation” of the statutory provisions. T.D. 9466, 74 Fed. Reg. 49321 , 49322 (Sept. 28, 2009). Perhaps this was the Secretary’s attempt to claim the interpretive exception, but it makes little difference as the APA doesn’t require an explicit assertion of the interpretive-rule exception.

Even by this bright-line rule, however, the applicable regulation isn’t clearly interpretive in the tax-law sense. Though the parties refer to the two regulations in tandem, section 6229 governs partnerships, meaning that the regulation applicable here is section 301.6229(c)(2)-1T, Temporary Proced. & Admin. Regs. See majority op. note 2. This regulation was issued under two sources of authority — section 7805 and 6230(k). The tax-law definition of interpretive has largely been limited to regulations issued solely under section 7805. See Asimow, “Public Participation in the Adoption of Temporary Tax Regulations”, 44 Tax Law. 343 , 358 (1991); see also Berg, “Judicial Deference to Tax Regulations: A Reconsideration in Light of National Cable, Swallows Holding, and Other Developments”, 61 Tax Law. 481 , 485-486 (2008).

Though the Attorney General’s Manual is not a source of binding law, its definitions are useful as near-contemporaneous constructions of the APA. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 218 (1988) (Scalia, J., concurring) (referring to the Attorney General’s Manual as “the Government’s own most authoritative interpretation of the APA * * * which we have repeatedly given great weight”, citing examples).

See Warder v. Shalala, 149 F.3d 73 (1st Cir. 1998); Mission Group Kan., Inc. v. Riley, 146 F.3d 775 (10th Cir. 1998); Truckers United for Safety v. Fed. Highway Admin., 139 F.3d 934 (D.C. Cir. 1998); Aulenback, Inc. v. Fed. Highway Admin., 103 F.3d 156 (D.C. Cir. 1997); Appalachian States Low-Level Radioactive Waste Commn. v. O’Leary, 93 F.3d 103 (3d Cir. 1996); Hoctor v. USDA, 82 F.3d 165 (7th Cir. 1996); Chen Zhou Chai v. Carroll, 48 F.3d 1331 (4th Cir. 1995); N.Y. City Employees’ Ret. Sys. v. SEC, 45 F.3d 7 (2d Cir. 1995).

One scholar noted that it was common for some agencies to publish any rule with “legal effect” in the CFR (and recognized this phrase was broader than the “force of law”), and that the court didn’t want to discourage this practice because it is beneficial to the public. 1 Pierce, Administrative Law Treatise, sec. 6.4, at 453 (5th ed. 2010).

The Eighth Circuit addressed the characterization of interpretive versus legislative rules in Drake v. Honeywell, Inc., 797 F.2d 603 (8th Cir. 1986). In a brief discussion, it appeared to adopt a similar approach of looking to the agency’s intent and whether the agency had a delegation of law-making authority. Id. at 607-608 . Similarly, in Nw. Natl. Bank v. U.S. Dept. of the Treasury, 917 F.2d 1111, 1116-1117 (8th Cir. 1990), the Eighth Circuit relied on the familiar distinction that an interpretive rule merely reminds parties of existing duties while a legislative rule '“has the force of law, and creates new law or imposes new rights or duties.’”

But in Howard E. Clendenen, Inc. v. Commissioner, 207 F.3d 1071, 1074 (8th Cir. 2000), affg. T.C. Memo. 1998-318 , the Eighth Circuit may have held that regulations that the Secretary issued without specific authority do not have the force of law, though it did refer to them as law, see id. (“Congress considered then-existing law — namely, Section 402(e)(3), together with its regulations”), and appeared to give them legal effect, id. at 1075 (citing the regulations for its conclusions without further sources).

The Brand X framework also suggests this result. In Brand X, the Court weighed a prior judicial interpretation against “an agency construction otherwise entitled to Chevron deference”. Natl. Cable & Telecomms. Association v. Brand X Internet Servs., 545 U.S. 967, 982 (2005). Just 5 years earlier, the Court said interpretive rules — those lacking the force of law — aren't entitled to Chevron deference. Christensen v. Harris County, 529 U.S. 576, 587 (2000). It seems to follow that if an agency wants to trump judicial precedent, it has to issue legislative rules.

Nearly 30 years ago, in Wing v. Commissioner, 81 T.C. 17, 28 (1983), we mentioned that Treasury regulations, though deemed to have the force of law, still qualify as “interpretative” rules and are exempt from the APA’s requirements. In context, this was dictum, and the overwhelming weight of precedent from later years counsels us not to follow it.

Prior law had allowed temporary regulations to linger for a very long time, to the point that courts were beginning to notice a pattern of the Secretary’s growing reliance on temporary regulations without ever finalizing or repealing them. See, e.g., Fleming v. Commissioner, T.C. Memo. 2010-60 (relying on 25-year-old temporary regulations for substantiation standards). Several commentators suggest that Congress was actually aiming to restrict the Treasury’s regulation writers by curtailing this practice. See Hickman, “A Problem of Remedy,” supra at 1209; ABA, Section of Taxation, “Report of the Task Force on Judicial Deference”, 57 Tax Law. 717 , 735 (2004); Asimow, supra at 363-364.

Though issuing a simultaneous NPRM and seeking post-effective comments is consistent with respondent’s argument, Congress may have intended this to apply only to temporary regulations that already fit into an exception to the APA, especially considering that a need for temporary regulations would normally be expected in emergency or good-cause situations.

Respondent does point to some cases where temporary regulations were relied upon despite not undergoing notice and comment, see UnionBanCal Corp. v. Commissioner, 305 F.3d 976 (9th Cir. 2002), affg. 113 T.C. 309 (1999); Kikalos v. Commissioner, 190 F.3d 791 (7th Cir. 1999), revg. T.C. Memo. 1998-92 , but in these cases APA compliance wasn’t challenged. We also note, as we did in UnionBanCal Corp. v. Commissioner, 113 T.C. at 317 n.8, that the Secretary asserted a good-cause exception to the APA’s notice-and-comment requirement when he issued the regulations in these cases. T.D. 8168, 52 Fed. Reg. 48407 (Dec. 22, 1987) (Kikalos); T.D. 7991, 49 Fed. Reg. 46992 (Nov. 30, 1984) (UnionBanCal).

If respondent had successfirlly promulgated interpretive rules, we would reach this same point.