UNITED STATES TAX COUR T

134 T .C . No . 1 1

UNITED STATES TAX COUR T

INTERMOUNTAIN INSURANCE SERVICE OF VAIL, LIMITED LIABILITY

COMPANY, THOMAS A . DAVIES, TAX MATTERS PARTNER, Petitioner v .

COMMISSIONER OF INTERNAL REVENUE, Respondent *

Docket No . 25868-06 .

Filed

May

6,

2010 .

R filed a motion .to vacate the Court's prior

decision and a motion to reconsider the Court's prior

opinion . R's motions are premised on the retroactive

application of temporary regulations issued after the

Court issued its opinion and entered its decision .

Held : R's motions to reconsider and to vacate

will be denied .

Steven R Anderson , for petitioner .

Gary J .'Merken , for respondent .

.*This opinion supplements our previously filed opinion in .

Intermountain Ins . Serv . of Vail, LLC v . Commissioner , T .C . Memo .

2009-195 .

SERVED May 06 2010

SUPPLEMENTAL OPINIO N

WHERRY,

Judge : We issued an opinion and entered our

decision in this case on . September 1, 2009 . Relying on

Bakersfield Energy Partners, LP v . Commissioner , 128 T .C . 207

(2007), affd . 568 F .3d 767 (9th Cir . 2009), we decided that the

adjustments made in respondent's final partnership administrative

adjustment (FPAA) on which this case is based are barred by the

general 3-year period of limitations in section 6501(a) .1 See

Intermountain Ins . Serv . of Vail, LLC v . Commissioner , T .C . Memo .

2009-195 . Respondent subsequently issued two temporary

regulations, sections 301 .6229(c)(2)-iT and 301 .6501(e)-1T,

Temporary Proced . & Admin . Regs ., 74 Fed . Reg . 49322-49323 (Sept .

28,

2009),

and on the basis of the application of those temporary

regulations to this case, filed motions to vacate our decision

and to reconsider our opinion .2 The sole issue now before th e

'Unless otherwise indicated, all section references are to

the Internal Revenue Code of 1986, as amended and in effect for

the year at issue, and all Rule references are to the Tax Court

Rules . of Practice and Procedure .

2In our Sept . 1, 2009, opinion, we noted that, although

.respondent argued that sec .6501(e)(1)(A) applied, his argument s

suggested that he meant to cite sec . 622 .9(c)(2) instead . . See

Intermountain Ins . Serv . of Vail, LLC v . Commissioner , supra n .3 .

Sec . 6501(e)(1)(A) extends the 3-year period of limitations for

assessing tax to 6 years from the due date or the date of the tax

return, whichever is later . See sec . 6501(a) . For tax

attributable to a partnership item, the period of limitations

remains open at least for 3 years after the date the partnership

return was filed or 3 years after the last day, disregardin g

(continued . . .)

Court is whether the temporary regulations compel us to gran t

respondent's motions .

Background ,

The transactions at the heart of this case took place i n

1999 and were reported on the 1999 Form 1065, U .S . Partnership

Return of Income, of Intermountain Insurance Service of Vail, LLC

(Intermountain), filed on September 15, 2000 . The details of the

transactions are largely irrelevant to the issues we face today .

Suffice it to say that in the previously mentioned FPAA that

respondent issued on September,14, 2006, respondent determine d

2 ( . . . continued )

extensions, for filing the partnership return, whichever i's

later . See sec . 6229(a) . Sec . 6229(c)(2) extends the sec .

6229(a) period . Although'there is no period of limitations

within which the Commissioner must issue an FPAA, partnership

item adjustments made in an FPAA are time barred at the partner

level if the FPAA is not issued within the applicable period of

limitations for assessing tax against a partner attributable to

partnership items . See generally Curr-Spec Partners, L .P . v .

Commissioner , 579 F .3d 391 (5th Cir . 2009), affg . T .C . Memo .

2007-289 ; Rhone-Poulenc Surfactants & Specialties, L . .P . v .

Commissioner , 114 T .C . 533, 534-535, 542 (2000) .

Respondent has not provided support for his argument that

sec . 6501(e)(1)(A) or sec . 301 .6501(e)-1T, Temporary Proced . &

Admin . Regs ., 74 Fed . Reg . 49322-49323 (Sept . 28, 2009), applies .

to this case . Respondent has only addressed an omission from

Intermountain's partnership return and time periods running from

the filing of that return . Nevertheless, the parties refer to

the temporary regulations in tandem . Respondent states in his

motion to reconsider that "The temporary regulations apply to

petitioner's 1999 tax year" . For the purposes of this Opinion,

and because sec . 6501(e)(1)(A) and sec . 301 .6501(e)-1T, Temporary

Proced . & Admin . Regs ., supra , could affect the outcome of this

case if a partner's period of limitations was still open when the

FPAA was issued, we will follow the parties' lead and refer to

the temporary regulations in tandem .

that the transactions characterized as a tax shelter "were a

sham, lacked . economic substance and * * * [had] a principal

purpose of * * * [reducing] substantially the present value

of * * * [Int .ermountain's] partners' aggregate federal tax

liability" . Critically, respondent's determination revolved

around Intermountain's alleged overstatement-of partnership

basis .

Petitioner timely petitioned this Court for review of the

FPAA and moved for summary .judgment on the ground that respondent

had issued the FPAA beyond the general 3-year period of

limitations for assessing tax against Intermountain's partners .

See secs . 6229(a), 6501(a) . Respondent conceded that the 3-year

limitations period had expired but argued that an extended 6-year

period . of limitations applied instead as a result of

Intermountain's basis overstatement .3 See secs . 6229(c)(2) ,

3The bar of the period of limitations is an affirmative

defense, and petitioner bore the burden of proof . See Rules 39,

142(a) ; see also Hiahwood Partners v . Commissioner , 133 T .C . _,

- (2009) (slip . op . at 14) . Petitioner established a prima facie

case that the general 3-year period of limitations had .expired as

of the date the FPAA was issued in this case, and respondent

conceded as much . Accordingly, and because respondent never

suggested any other reason why the period of limitations with

respect to any partner remained open, the burden of going forward

shifted to respondent to establish that there was a greater-than25-percent omission of gross income on a partner's or the

partnership's return . See Highwood Partners v . Commissioner ,

supra at - (slip op . .at "14) ; see also Intermountain Ins . Serv .

of Vail v . Commissioner, LLC , supra n .2 .

6501(e)(1)(A) . A dispute over the proper interpretation of

sections 6229(c)(2) and 6501(e)(1)(A) ensued .

Generally, a-6-year limitations period is triggered when a

taxpayer or partnership "omits from gross income an amount

.properly includible therein which is in excess of 25 percent o f

the amount of gross income stated in the return" . Sec .

6501(e)(1)(A) (taxpayer) ; see sec . 6229(c)(2) .(partnership) . The

focus of the parties' dispute was whether an overstatement o f

.basis constitutes an omission from gross income for purposes of

triggering a 6-year limitations period .

This was not an issue of .first impression . In Bakersfield

Energy Partners, LP v . Commissioner ,

supra,

we held that a basis

overstatement was not an-omission from gross income for purposes

of sections 6229(c)(2) and 6501 (e) (1) (A) . In reaching ou r

conclusion, we applied the holding of Colony, Inc . v .

Commissioner , 357 U .S . 28,

33 (1958),

in which the Supreme Court

.was faced with identical language in section 6501(e)(1)(A)'s

predecessor--section 275(c) of the Internal Revenue Code o f

1939 . See Bakersfield Energy Partners, LP v . Commissioner ,

supra

at 215 ("We are unpersuaded by respondent's attempt to

distinguish and diminish the Supreme Court's holding in

Colony,

Inc . v . Commissioner " .) . The Supreme Court's holding, as we

described it, was "that the extended period of limitations

applies to situations where specific income receipts have .been

`left out' in the computation . of gross income and not when an

understatement of gross income resulted from an overstatement o f

.basis ."

Id .

at 213 . The Supreme Court had reviewed the

statute's legislative history and determined that Congress had

not intended a basis overstatement to be an omission from gross

income . See Colony, Inc . v . Commissioner ,

We adhered .to our precedent in

LP v . Commissioner ,

supra at 33, 36 .

Bakersfield Energy Partners,

supra , when we issued our September 1, 2009,

opinion in this case . See

Intermountain Ins . Serv . of Vail, LLC

v . Commissioner , T .C . Memo . 2009-195 . Accordingly, in our

September 1, 2009, order and decision, we granted petitioner's

motion for summary judgment and decided that the adjustments in

respondent's FPAA were barred by the general 3-year limitations

period . That was not the end of the matter, however .

On September 24, 2009, less than a month after our order and

decision in this case, respondent and the Treasury Department

issued temporary regulations under sections 6229(c)(2) and

6501(e)(1)(A) . See secs . 301 .6229(c)(2)-1T and 301 .6501(e)-1T,

Temporary Proced . & Admin . Regs .,

supra . These temporary

regulations were simultaneously issued as proposed regulations .

See . sec . 7805(e) . On September 28, 2009, notice was published

and comments were sought for sections 301 .6229(c)(2)-1 and

301 .6501(e)-1, Proposed Proced . & Admin . Regs ., see Notice of

Proposed Rulemaking by Cross-Reference to Temporary Regulations,

74 Fed . Reg . 49354 (Sept .• .28, 2009)-, and the temporar y

regulations were published in the Federal Register, see secs .

301 .6229(c)(2)-1T and 301 .6501(e)-1T, Temporary Proced . &-Admin .

.Regs .

supra .

The temporary regulations provide, in pertinent part, that

"an understated amount of gross income resulting from an

overstatement . of unrecovere .d cost or other basis, constitutes a n

omission from gross"income for purposes of *

*

[section s

6229(c)(2) and 6501(e) (1) (A) ] . See secs . . 301 .6229(c) (2) -1T and

301 .6501(e)-1T, Temporary Proced . & Admin . Regs .,

supra . The

interpretation espoused by the temporary regulations runs

contrary to the interpretation adopted by this Court in

Bakersfield Energy Partners, LP v . Commissioner , 128 T .C . 207

(2007), and by the Courts of Appeals for the-Ninth and Federal

Circuits in Bakersfield Energy Partners, LP v . Commissioner , 568

F .3d 767 (9th Cir . 2009),9 and Salman Ranch Ltd . v . United

States , 573 F .3d 1362 (Fed . Cir . 2009), respectively . See T .D .

9466, .2009-43 I .R .B . 551, 552 ("The Treasury Department and the

Internal Revenue Service disagree with these courts that th e

4According to T .D . 9466, 2009-43"I .R .B . 551, 552, the

temporary regulations are consistent with a suggestion by the

U .S . Court of Appeals for the Ninth Circuit in Bakersfield Energy

Partners, LP v . Commissioner , 568 F .3d 767, 778,(9th Cir . 2009),

affg . 128 T .C . 207 (2007), that . ambiguity in the statutory

language may make the statutes susceptible to reinterpretation

through regulations . We address this infra note 24 .

- 8 Supreme Court ' s reading of the predecessor to section 6501(e) in

Colony applies to sections 6501 ( e)(1)(A) and 6229 ( c)(2) .") .

Bolstered by the temporary regulations ,

October 16 ,

2009 ,

respondent, on

lodged--and on November 25, . 2009 ,

was permitte d

to file-- an otherwise late'motion to vacate our September 1 ,

2009, decision and a motion .to reconsider our September 1, 2009,

opinion . As the moving party, respondent bears the burden of,

proving entitlement to relief . See Kraasch v . Commissioner , 70

T .C . 623, 626 (1978) . Respondent urges us .to reconsider the

case, this time eschewing our prior precedent in .favor of the

temporary regulations . Petitioner counters that the temporary

regulations are either inapplicable, invalid, or otherwise not

entitled to deference . On November 25, 2009, we ordered the

.parties to file briefs . Pursuant to our order, the parties filed

opening briefs on January,5, 2010 . Petitioner and respondent

filed reply briefs on January 27 and February 1, 2010,

respectively .

I .

.

Discussion

Motions To Reconsider and To Vacat e

Motions to reconsider and . to vacate are governed by Rules

161 and 162, respectively . Those rules establish filing

deadlines but provide no .guidance on when the Court should grant

or deny such motions . In the absence of more specific guidance,

we look to caselaw and the Federal Rules of Civil Procedure . See

Rule 1(b) .

The decision to grant motions to reconsider and to vacat e

lies within the discretion of the Court .

Estate of Quick v .

Commissioner , 110 T .C . 440, 441 (1998) (motion to reconsider) ;

Kun v . Commissioner , T .C . Memo . 2004-273 (motion to vacate) .

Motions to reconsider are generally "intended to correc t

substantial errors of fact or law arid allow the introduction of

newly discovered evidence that the moving party could not have

introduced by the exercise of due diligence in the prio r

proceeding ."

Knudsen v . Commissioner , 131 T .C . 185, 185 (2008) .

"Reconsideration is not the appropriate forum for rehashin g

previously rejected legal arguments or tendering new . legal

theories to reach the end result desired by the moving party ."

Estate of Quick v . Commissioner ,' supra at 441-442 . Motions to

vacate are generally not granted absent a showing of unusual

circumstances or substantial error,e .g ., mistake, inadvertence,

surprise, excusable neglect, newly discovered evidence, fraud, or

other reason justifying relief .

See, e .g ., Fed . R . Civ . P . 60(b) ;

Brannon's of Shawnee, Inc . v . Commissioner , 69 T .C . 999 (1978) .

Importantly, an intervening change in the law can warrant

the granting of both a motion to reconsider and a motion to

vacate. See Alioto v . Commissioner , T .C . Memo . 2008-185 .5' I n

5See also Servants of the Paraclete v . Does , 204 F .3d 1005,

1012 (10th Cir . 2000) ; Cornell v . Nix , 119 F .3d 1329, 1332-1333

(8th Cir . 1997) ; Matarese v . LeFevre , 801 F .2d .98, 106 (2d Cir .

1986) ; McGrath v . Potash , 199 F .2d 166, 167 (D .C . Cir . 1952) .

- 10 .Alioto v . Commissioner , T .C . Memo . 2006-199, the Court held that

it lacked jurisdiction over "stand-alone" section 6015(f )

cases . After Congress expanded the Court's jurisdiction to

include such cases, see Tax Relief and Health Care Act of 2006,

Pub . L . 109-432, div . C, sec . 408, 120 Stat . 3061, the taxpayer

filed timely motions to reconsider and to vacate, which the Court

granted . See Alioto v . Commissioner , T .C . Memo . 2008-185 ("We

agree that the Court correctly applied the caselaw as it existed

at the time the Court issued Alioto I ; however, we disagree that

the motion for reconsideration should be denied . After the

Court's decision in Alioto I the law and the Court's jurisdiction

changed ." (Fn . ref . omitted .)) .

Respondent asks us to grant the motion to vacate in the

"interests of justice" so that we "may grant the motion for

reconsideration ." Citing Alioto v . Commissioner , T .C . Memo .

2008-185, respondent further .asserts that the issuance of the

temporary regulations was an "unusual circumstance" warranting

reconsideration of our September 1, 2009, opinion . Petitioner

disagrees and attempts to distinguish Alioto v . Commissioner , .

T .C . Memo . 2008-185, .noting that it involved "an act o f

[C]ongress * * *, not a regulation issued by Respondent, who wa s

a litigant in the case ." Along these lines, petitioner warns

that "Granting Respondent's Motion under the circumstances of

this case would give Respondent license to render litigation

- 11 futile" because "In every case where * * * [respondent] receives

an adverse decision, Respondent could simply restate its [sic]

unsuccessful argument as a .temporary regulation, and then request

reconsideration based upon the temporary regulation . "

Petitioner's concerns are .noteworthy ;6 however, they do not

persuade us to deny respondent's motions without first

considering the applicability and potential impact of the

temporary regulations . Ignoring the temporary regulations at

this time would not dispel the evils envisioned by petitioner .

Indeed, respondent could appeal our September 1, 2009,

,

decision and ask the appellate court to consider the issue of the

temporary regulations in the first .instance . Respondent has

already done so in more than one case .' . By neglecting the

temporary regulations at this time we would not be protecting the

integrity of . the judicial system, as petitioner suggests, but

merely failing to fully complete our work . We see no compelling

reason to wield our discretion to that end . Moreover, w e

'Tax litigation is expensive, and respondent litigates with

taxpayer-provided funds while petitioner and/or the limited

liability company or its members must litigate with their own

funds . If the law is allowed to change retroactively after a

taxpayer has prevailed in one or more courts, thereby rendering .

their victory Pyrrhic, the perverse result will be to

significantly discourage taxpayers from asserting their rights

under the then-existing law .

7See Brief for the Appellant at 14, Salman Ranch, Ltd . v .

Commissioner , No . 09-9015 (10th Cir . Feb . 16, 2010) ; Brief fo r

the Petitioner at 17-18, Commissioner v . M .I .T .A . , No . 09-6082 7

(5th Cir ., Mar .. 3,

2010) .

12 question petitioner's attempt to distinguish Alioto v .

Commissioner , T .C . Memo . 2008-185, in this context .8

Accordingly, we proceed to consider the applicability an d

potential impact of .the temporary regulations to . this case . If,

as petitioner contends, . the temporary regulations do not apply,

are invalid, or are otherwise not entitled to deference, we will

deny respondent's motions because it would be pointless to grant

them . If, on the other hand, the temporary regulations apply,

are valid, and are entitled to deference, we would be required to

ascertain whether, after considering all other factors,

respondent's motions should be granted . We turn first to whether

the temporary regulations apply to this case .

II .

The Applicability of the Temporary Regulation s

The threshold issue in determining whether the temporary

regulations apply to this case is whether the temporary

regulations apply by their own terms . The

"Effective/applicability date" provisions of the temporary

regulations provide that "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)-1T(b) and 301 .6501(e)-1T(b), Temporary Proced . &

Admin . Regs .,

supra .

'See , e .g ., Smiley v . Citibank ( S .D .), N .A . , 517 U . S . 735,

744 n -.3 (1996), which we cited in our Nov . 25, 2009 , order in

this case granting respondent ' s Oct . 16, 2009 , motions for leave

to file out of time the motions to reconsider and to vacate .

13 The starting point for interpreting a regulatory provision

is its plain meaning . See Walker Stone Co . v . Secy . of Labor ,

156 F .3d 1076, 1080 (10th Cir .

1998)

("When the meaning of a

regulatory provision is clear on its face, the regulation must be

enforced in accordance with its plain meaning .") . We concluded

in our September 1, 2009, opinion 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 .

The plain meaning of the

effective/applicability date provisions indicates that,the

temporary regulations do not apply to this case .

Respondent argues to the contrary and in doing so begs the

question9 by advancing a notably convoluted interpretation of the

effective/applicability date provisions :

To determine whether the temporary regulations are

applicable under the effective date provision, the

Court must determine whether a six-year statute of

limitations would be open for the taxable year at

issue, as of September 24, 2009, without regard to wha t

the standard for applying the statute of limitation s

'See IRS Chief Counsel Notice CC-2010-001 (Nov . 23, 2009)

stating :

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 .

- 14 might be . If the six-year limitations period could be

open under some standard .as of September 24, 2009, then

the temporary regulations apply .

Under respondent's interpretation, the Court must depar t

from our precedent in . Bakersfield Energy . Partners, LP v .

Commissioner , 128 T .C . 207 (2007), affd . 568 F .3d 767 (9th Cir .

2009), which held that a 3-year limitations period applies .under

the circumstances of this case . We must then launch a quest for

some hypothetical standard that could trigger a 6-year

limitations period . If we discover such a standard--and the

temporary regulations conveniently supply us with one--then we

must apply that standard to determine whether the period of

limitations in this case could have been open as of September 24,

2009 . If the limitations period could have been open under the

hypothetical standard, then the temporary regulations apply to

this case .

Essentially, the key, according to respondent, is not

whether the limitations period was actually open on September 24,

2009,

under then-applicable law but whether the limitations

period could have-been open on that date under hypothetical law .

Distilled even further, respondent's rationale suggests that the

temporary regulations apply to this case because their

application would trigger a 6-year limitations period .

Respondent had phrased this argument more simply in his motion to

reconsider : "The temporary regulations apply to petitioner's

- 15 .1999 tax year, because the period of limitations under sections

6229(c)(2) and 6501(e)(1)(A),

as interpretated in the

regulations , remains open with respect to that year ." (Emphasis

added .)' °

Ordinarily, an agency's interpretation of its own regulation

is controlling unless it is "plainly erroneous or inconsistent

Auer v . Robbins , 519 U .S . 452, 461 (1997)

with the regulation ."

(internal quotation marks omitted) ." Here, however, the Court

concludes that respondent's interpretation of the temporary

regulations' effective/applicability date provisions is erroneous

and inconsistent with the regulations . Specifically, we find the

interpretation to be irreparably marred by circular, resultdriven logic and the wishful notion that the temporary

regulations should apply to this case because Intermountain was

involved in what he believes was an abusive tax transaction . For

these reasons, we refuse to accord respondent's interpretation

deferential treatment .

The . plain meaning of the,-,temporary regulations'

effective/applicability date provisions indicates that th e

'°See supra note 9 .

.

"See also Ariz . Pub . Serv . Co . v . U .S . EPA , 562 F .3d 1116,

1123 n .5 (10th Cit . 2009) ; Solis v . Summit Contractors, Inc . , 558

F .3d 815, 823 (8th Cit . 2009) ; Estate of Focardi v . Commissioner ,

T .C . Memo . 2006-56 ("Our view is further supported by the wellestablished principle that the judiciary should accord

substantial deference to the .Commissioner's .interpretation of

Treasury regulations" .) .

- 16 temporary regulations do not apply to this case because th e

applicable period of limitations expired before September 24,

.2009 .12 It would therefore be futile to grant respondent's

motions to reconsider and to vacate, both of which are premised

on the application of the temporary regulations to this case .

While the foregoing establishes a plausible ground to rule

against respondent's motions, it becomes compelling when combined

with our discussion below .' 3

12 The Court recognizes that respondent may argue that the

decisions we rely upon, Bakersfield Energy Partners, LP v .

Commissioner , 568 F .3d 767 (9th Cir . 2009), and Salman Ranch Ltd .

v . United States , 573 F .3d 1362 (Fed . Cir . 2009), holding that

the limitations period had expired before Sept . 24, 2009, do not,

in his opinion, make it so . There are 11 other Courts of Appeals

and the Supreme Court still to be heard from, and by accepting as

settled law the Bakersfield and Salman Ranch results our

rationale may, in respondent's view,, also beg the question .

Respondent, however, cites no court authorities equivalent to

those of the appellate court decisions, and although he cites the

temporary regulations, courts have traditionally determined the

meaning of statutes . See Chevron U .S .A . Inc . v . Natural Res .

Def . Council , 467 U .S . 837, 843 n .9 (1984) (stating that "The

judiciary is,the final authority on issues of statutory

construction") . Thus we believe our position is appropriate . We

address in Section III below why in addition to Bakersfield

Energy Partners, LP v . Commissioner , supra , and' Salman Ranch Ltd .

v . United States , supra, we conclude that the 3-year limitations,

period applied to this case before Sept . 24, 2009 .

13We also recognize that respondent could amend the

temporary regulations' effective/applicability date provisions

and file renewed motions to reconsider and to vacate based on

those amended provisions, thereby extending this dispute to yet

another case . See Murrell v . Shalala , 43 F .3d 1388, 1389 (10th

Cir . 1994) .

- 17 III .

Judicial Deferenc e

We next turn to whether the temporary regulations, if

applicable, deserve judicial deference . Courts have long held

that Federal tax regulations are entitled to some degree of

deference .. This is in recognition of the fact that "Congress has

delegated to the [Secretary of the Treasury and his delegate,

the] Commissioner [of Internal Revenue], not to the courts, the

task of prescribing all needful rules and` regulations for the

enforcement of the Internal Revenue Code ."

Natl . Muffler Dealers

Association, Inc . v . United States , 440 U .S . 472, 477 (1979)

(internal quotation marks omitted) . Yet, the exact amount of

deference owed to Federal tax regulations remains a source of

debate .

Petitioner asserts- that the temporary regulations are only

entitled to deference under

Skidmore v . Swift & .Co .,

323 U .S .

134, 140 (1944), because they are interpretive regulations .

Respondent counters that the more deferential standard in

Chevron

U .S .A . Inc . v . .Natural Res . Def . Council , 467 U .S . 837, 842-843

(1984), applies and that, if not, then the temporary regulation s

at least fall under Natl Muffler Dealers Association, Inc .

need not resolve the parties' dispute on this issue because, even

I

if the temporary regulations are entitled to review under

18 Chevron , they face a formidable obstacle to deference-- Colony,

Inc . v . Commissioner , 357 U .S .

28

(1958) .1 4

The temporary regulations were not issued on a blank slate .

In its 1958 opinion in Colony, Inc . , the Supreme Court

interpreted the same statutory language and held that a basis

overstatement was not an-omission from gross income .

Id .

More

than 50 years later, respondent and the Treasury Department

issued the temporary regulations and reached the opposit e

conclusion . The question is whether we are bound by the agency's

construction of the statute in the temporary regulations or by

the Supreme Court's prior determination of congressional intent

and the Internal Revenue Code' .s requirements, as set forth i n

"Respondent maintains that Colony, Inc . v . Commissioner ,

357 U .S . 28 (1958), does not control the interpretation of secs .

6229(c)(2) and 6501(e)(1)(A), see T .D . 9466, supra, and that, in

any event, the Supreme Court's and respondent's constructions are

not necessarily inconsistent . We held otherwise in Bakersfield

Energy Partners, LP v . Commissioner , 128 T .C . 207 (2007), and in

our Sept. 1, 2009, opinion in this case . See Intermountain Ins .

Serv . of Vail, LLC v . Commissioner , T .C . Memo . 2009-195 . We

rejected respondent's arguments in the process, and rehashing

them now even in this context is not necessary . See Estate of

Quick v . Commissioner , 110 T .C . 440, 441 (1998) . As we noted

previously, we are hesitant to contradict the Supreme Court's

ruling in Colony . See Intermountain Ins . Serv . of Vail, LLC v .

Commissioner , supra n .5 . The Supreme Court has advised lower

courts that "If a precedent of this Court [the Supreme 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, leaving

to this•Court .the prerogative of overruling its own decisions ."

Rodriguez de Ouijas v . Shearson/Am . Express, Inc . , 490 U .S . 477,

484 (1989) . We rule that our analysis here of the legislative

history behind the Colony decision provides further, and we

believe determinative, support for those opinions .

19 - .

Colony, Inc .

Assuming respondent is correct that the temporary

regulations are entitled to Chevron deference, the answer to this

question lies in Natl . Cable & Telecomms . Association v . Brand X

Internet Servs . , 545 U .S . 967, 982 (2005) .

"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 ,

supra at 982 . In so

holding, the Supreme Court reasoned as follows :

[A]llowing a judicial precedent to foreclose an agency

from interpreting an ambiguous statute * * * would

allow a court's interpretation to override an agency's .

Chevron 's premise is that it is for agencies, not

courts, to fill statutory gaps . * * * The better rule

is to hold judicial interpretations contained in

precedents to the same demanding Chevron step one

standard that applies if the court is reviewing the

agency's construction on a blank slate : Only a

judicial precedent holding that the statute

unambiguously forecloses the agency's interpretation,

- 20 and therefore contains no gap for the agency to fill,

displaces a conflicting agency construction .

.

Id .

at 982-983 .1 s

We are therefore directed to apply

Chevron step one by

determining whether the Supreme Court in Colony ,

Inc . v .

Commissioner ,

supra ,

found the statutory provision at issue to be

unambiguous .

If so ,

there . is no gap left for the temporary

regulations to fill with respect to the statutory provisions at

issue here .

The first step in Chevron ' s two - step analysis is to

ask "whether Congress has directly spoken to the precise question

at issue ."

Chevron U .S .A . Inc .

v . Natural Res . Def . Council ,

supra at 842 . "If the intent of Congress is clear, that is the

end of the matter ,

for the court ,

as well as the agency ., mus t

15In a concurring opinion, Justice Stevens suggested that

this holding "would not necessarily be applicable to a decision

by this Court that would presumably remove any pre-existing

ambiguity ."

Natl . Cable & Telecomms . Association v . Brand X

Internet Servs . , 545 U .S . 967, 1003 (2005) (Stevens, J .,

concurring) . Justice Stevens' suggestion has indeed sparked

debate over the applicability of Brand X . Although that debate

is still largely open, we note, without approval or disapproval,

that the U .S . Court . of Appeals for the Tenth Circuit has held

that Brand X does apply when the prior judicial construction is

the Supreme Court's . See Hernandez-Carrera v . Carlson , 547 F .3d

1237, 1248 (10th Cir . 2008) ("[W]e conclude that the holding of

Brand X applies whether the judicial precedent . at issue is that

.of a lower court or the Supreme Court .") .

21 give effect to the unambiguously . expressed intent of Congress .

Id .

at 842-843 .

When determining . Congress' intent,

Chevron instructs us to

employ "traditional tools of statutory construction ."

Id .

.at .843

n .9 . Many courts, including the Courts of Appeals to which this

case might be appealed," have accepted the use of legislative

history as an important element in

Chevron step one . See, e .g .,

Anderson v . U .S . Dept . of Labor , 422 F .3d 1155, 1180 (10th Cir .

2005) ("To .determine whether Congress had an intent on the

precise question at issue, courts utilize the traditional tools '

16The second step of Chevron specifies as follows :

If, however, the court determines Congress has not

directly addressed the precise question at issue, the

court does not simply impose its own construction on . .

the statute, as would be necessary in .the absence of an

administrative interpretation . Rather, if the statute

is silent or ambiguous with respect to the specific

issue, the question . for the court is whether the

agency's answer is based on a permissible construction

of the statute . . [Fn . refs . omitted . ]

Chevron U .S .A . Inc . v . Natural Res . Def . Council , 467 U .S . at

843 .

17In our Sept . 1, 2009, opinion, we indicated that, absent

stipulation to the contrary, this case may be appealable totthe

Court of Appeals for the Eighth, Tenth, or D .C . Circuit . See

Intermountain Ins . Serv . of Vail, LLC v . Commissioner , T .C . Memo .

2009-195 n .4 (citing Golsen v . Commissioner, 54 T .C . 742, 757

(1970), affd . 445 F .2d 985 (10th Cir . 1971)) . We . did not answer

Id .

the question of proper venue and do not do so now .

22 of statutory construction, including the statutory language and

legislative history .") . 1 8

Therefore, in determining whether the Supreme Court in

Colony, Inc . v . Commissioner , 357 U .S .

-28 (1958), found the

statutory provision at issue to be unambiguous, we will conside r

the court's analysis of both the statutory language and its

legislative history .19 Respondent calls attention to the Suprem e

18See Catawba County v . EPA , 571 F .3d 20, 35 (D .C . Cir .

2009) ("To be sure, a statute may foreclose an agency's preferred

interpretation despite such textual ambiguities if its structure,

legislative history, or purpose makes clear what its text leaves

opaque .") ; North Dakota ex rel . Olson v . Ctrs . for Medicare &

Medicaid Servs . , 403 F .3d 537, 539-540 (8th Cir . 2005) ; see also

Miccosukee Tribe of Indians v . United States , 566 F .3d 1257, 1273

(11th Cir . 2009) ; New York v . U .S . Dept . of Health & Huma n

Servs .' Admin . for Children & Families , 556 F .3d 90, 97 (2d Cir .

2009) ; Natural Res . Def . Council v . U .S . EPA , 526 F .3d 591, 603

(9th Cir . 2008) ; Wheatland Tube Co . v . United States , 495 F .3d

1355, 1359-1360 (Fed . Cir . 2007) ; Succar v . Ashcroft , 394 F .3d 8,

22-23 (1st Cir . 2005) . But see United States v . Geiser , 527 F .3d

288, 292 (3d Cir . 2008) ; Bankers Life & Cas . Co . v . United

States , 142 F .3d 973, 983 (7th Cir . 1998) .

The Supreme Court has sent mixed signals about the use of

legislative history in Chevron step one . In Chevron itself, the

Court considered legislative history as part of step one .

Chevron U .S .A . Inc . v . Natural Res . Def . Council , 467 U .S . at

862 . It has continued to do so in more recent opinions,, and we

deduce that . it intends to continue this practice . See Gen .

Dynamics Land Sys ., Inc . v . Cline , 540 U .S . 581, 587-590, 600

(2004) ; see also Zuni Pub . Sch . Dist . No . 89 v . Dept . of Educ . ,

550 U .S . 81, 90-91 (2007) . Nevertheless, on occasion, .the Court

has stopped short of employing traditional tools of statutory

construction, including legislative history . See Negusie v .

Holder , 555 U .S .

129

S . Ct . 1159, 1183 (2009) (Thomas,

J ., dissenting )

19Although we have found no opinion in which a court

considered legislative history when applying Brand X , we see no

reason why a court--if it considers legislative history whe n

(continued . . .)

23 .Court's statement that "Although we are inclined to think that

the statute on its face lends itself more plausibly to the

taxpayer's interpretation, it cannot be said that the language is

unambiguous . ii 20

Colony, Inc . .v . Commissioner ,

supra at 33 . In

doing so, respondent ignores the Supreme Court's subsequent

review of, and reliance on, the statute's legislative history .

Although the Supreme Court initially found the statutory

provision ambiguous, that was only a preliminary conclusion

before considering . the statute's legislative history . After

thoroughly reviewing the legislative history,21 the Supreme Court

concluded that Congress' intent was clear and that the statutory

provision was unambiguous .

Id .

at 33, 36 .

Specifically, the Supreme Court found the legislative

history to be "persuasive evidence that Congress was addressing

itself to the specific situation where a taxpayer actually

omitted some income receipt or accrual in his computation of

gross income, and not more generally to errors in tha t

19 ( . . . continued )

applying Chevron step one--would not also consider it when

applying Brand X .

20Both parties also refer to the Supreme Court's observation

that "the conclusion we reach is in harmony with the unambiguous

language of § 6501(e)(1)(A) of the, Internal Revenue Code o f

1954 ."

Colony, Inc . v . Commissioner , 357 U .S . at 37 . We decline

both parties' requests to attach meaning to that statement .

21Hearings Before the House Comm . on Ways and Means, 73d

Cong ., 2d Sess . 139, 149 (1934) ; H . Rept . 704, 73d Cong ., 2d

Sess . 35 (1934), 1939-1 C .B . (Part 2) 554, 580 ; S . Rept . 558, 73 d

Cong ., 2d Sess . 43-44 (1934), 1939-1 C .B . (Part 2) 586, 619 .

- 24 computation arising from other causes ."

Id .

at 33 (emphasis

added) It further indicated that "this history shows to our

satisfaction that the Congress intended an exception to the usua l

three-year statute of limitations only in the restricted type of

situation already described [an omission of an item of gross

income] ."

Id .

at 36 . "We think that in enacting § 275(c)

Congress manifested no broader purpose than to give the

Commissioner an additional two years to investigate tax returns

in cases .where, because of a taxpayer's omission to report some

taxable item, the Commissioner is at a special disadvantage in

detecting errors ."

Id .

In so holding, the Supreme Court found that the .statute's

legislative history clarified its otherwise ambiguous text and,

as a result, explicated Congress' intent and the meaning of the

statutory provision . Thus, the Supreme Court's opinion i n

Colony, Inc . v . Commissioner ,

supra,

"unambiguously forecloses

the agency's interpretation" of sections 6229(c)(2) and

6501(e)(1)(A) and displaces respondent's temporary regulations .2 2

. 22We recognize that Colony, Inc . v . Commissioner , 357 U .S .

28 (1958), predated both Chevron U .S .A . Inc . v . Natural Res . Def .

Council , supra , and Natl . Cable & Telecomms . Association v . Brand

X Internet Servs . , supra , so that the Supreme Court could not

have been aware of the standards against which its opinion would

be tested . We agree, however, with the U .S . Court of Appeals for

the Fourth Circuit, which stated that "[w]e * * * do not hold

that a ..court must say in so many magic words that its holding is

the .only permissible interpretation of the statute in order for

that holding to be binding on an agency ."

Fernandez v . Keisler ,

(continued . . .)

- 25 See Natl . Cable & Telecomms . Association v . Brand X Internet

Servs . ,

S23

supra at 983 . Consequently, the temporary regulation

are invalid and are not entitled to deferential treatment .2 9

22 ( . .

. continued )

502 F .3d 337, 347 (4th Cir . 2007 )

23See supra note 2 ; Intermountain Ins . Serv . of Vail, LLC v .

Co mm issioner , T .C . Memo . 2009 -195 n . .3 .

24 Respondent suggests that the U .S . Court of Appeals for the

Ninth Circuit, in Bakersfield Energy Partners, LP v .

Commissioner , 568 F .3d 767 (9th Cir . 2009), invited respondent to

issue the temporary regulations . The Court of Appeals

acknowledged that the Supreme Court in Colony, Inc . v .

Commissioner , supra , found sec . 275(c) to be ambiguous and .stated

that "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

Bakersfield

`opinion as to the best reading' of the provision ."

at

778

(quoting

Natl .

Energy Partners, LP v . Commissioner ,' supra

,

545

Cable & Telecomms . Association v . Brand X Internet Servs .

U .S . at 983) .

The Court of Appeals did not indicate definitively whether

any such temporary regulations would actually trump the Supreme

Court's prior judicial construction . This may flow from the

possibly unresolved issue of whether legislative history should

be considered when applying Chevron step one . Compare Natural

Res . Def . Council v . U .S . EPA , supra at 603 ("An examination of

the statutory language and its legislative history assists us in

this inquiry [ Chevron step one]" .), with Schneider v . Chertoff ,

450 F .3d 944, 955 n .15 (9th Cir . 2006) ("Although we cannot

consider legislative history under the first prong of Chevron ,

* * we note that the Secretary's regulation subverts the very

intent of the Nursing Relief Act .") . In any event, we will not

speculate as to the precise meaning of the Court of Appeal's

statement, particularly when, as in this case , we are not bound

by that court' s caselaw because this case is not appealable,

absent stipulation to the contrary, to that court . See Golsen v .

Commissioner , 54 T .C . at 757 .

26 IV .

Retroactivit y

We next turn to petitioner's concern that the temporary

regulations would have an impermissible retroactive effect if we

applied them in this case . Respondent attempts to defuse

petitioner's concern by arguing that the temporary regulation s

are not . retroactive . as applied in this case" but that, even if

they were, they would be permissibly retroactive . Thus, two

issues emerge : First, whether the temporary regulations would

have a retroactive effect if applied in this case, and second, if

so, whether the retroactive effect would be permissible .

However, in the light of our holdings above regarding the

regulations' effective date and their validity, we need not

answer these questions to resolve respondent's motions in this

case . We therefore leave them for another day .

Conclusion

In light of the above holdings, we find it . unnecessary to

address petitioner's other concerns with respect to the temporary

regulations . The . Court, has considered all of respondent's

contentions, arguments, requests, and statements . To the extent,

not discussed herein, we conclude that they are meritless,moot,

or irrelevant .

- 27 To reflect the foregoing,

An appropriate order wil l

be issued .

Reviewed by the Court .

COLVIN, WELLS, VASQUEZ, GOEKE, KROUPA, and PARIS, JJ .., agree

with this majority opinion .

GUSTAFSON and MORRISON ., JJ ., did not participate in the

consideration of this opinion .

28 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 .

- 29

HALPERN andHOLMES, JJ ., concurring in the result only :

I . . Introductio n

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 .' 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 , 110T .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 integrityof the judicial system,* .* .bu

*

t

merely failing to fully complete our work ." Majority op .

P.

11 .

The majority then proceeds to hold that the temporary regulations

are both . prospective (and therefore inapplicable to this case )

'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) .

30

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, b y

discrediting the substance of the temporary regulation s

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 .

2In 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 . pp . 11-12,

- 31 II .

Applicability of the Temporary Regulation s

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 . 13 . 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 befor e

September 24, 2009 ." Secs . 301 .6229(c)(2)-1T(b),

301 .6501(e) -

1T(b),

Temporary Proced .

& Admin . Regs ., 74 Fed .

49323

(Sept . 28, 2009) .

The relevant dates are as follows :

Tax year

Return filed

FPAA mailed

Petition filed

Order/Decision

Temp . Regs . effective date

Reg . 49322 ,

199 9

Sept .

15,

200 0

Sept .

Dec .

Sept .

Sept .

14,

4,

1,

24,

200 6

200 6

200 9

200 9

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 substantia l

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 .

- 32 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 . pp . 15-16 . 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 3year 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 . 13 . 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 . 13 .

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,

- 33

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 . 780.5(b) . Retroactivity of Regulations or

Rulings .--The Secretary may .prescribe the extent, if

any, to which any ruling or regulation, relating to th e

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 specif y

3In 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 .

- 34 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 b .elieves 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 2 .4, 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 P24, 2009 , and in which

no final decision has been entered . [ Emphasis added .]

= 35. 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 . I f

the majority believes any of those things, then it should explai n

itself . If not, then it should abandon its effective dat e

analysis (which the majority itself describes only as "a

plausible ground to rule against respondent's motions", majority

op . p . 16) 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 t o

reconsider or simply ground its decision on its reason (which w e

question) for finding the temporary regulations invalid .

- 36, III .

The Deference Muddl e

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 .fullblow n

analysis of the substantive validity of the regulations eve n

after concluding they do not apply because the regulations ar e

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

- 37

An analysis of the additional question we have to

answer after Brand X , 545 U .S . at 984 : Did the

Supreme Court holdiin 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 `i f

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 i s

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 entirel y

on whether prior caselaw conflicts with a later regulation .

38 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 Cit . 2008) (upholding

regulation contrary to Supreme Court decision after applying

Brand X ) . 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 : Determin e

"whether Congress has directly spoken to the precise question at

issue ."

Chevron USA, Inc . v . Natural Res . Def . Council , 467 U .S .

4 Hernandez-Carrera v . Carlson , 547 F .3d 1237, 12.46 (10th

Cit . 2008), seems to be the first case to test Brand X 's 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 .

- 39

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

step one :

Chevron

Chevron tells lower courts to use the "traditional

tools of statutory construction" to determine if Congress has

spoken on the precise issue .

Id .

Chevron v . Commissioner , 467 U .S .

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 th e

5Commentators 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") .

40 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 an d

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) .

41 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) ;

'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) .

- 42 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 statut e

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, 681682 (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) ;

- 43 • 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) ; an d

• Federal Circuit-- Amber-Messick v . United States , 483

F .3d 1316, 1323-1324 (Fed . Cir . 2007) (used in both

steps) ; Star-Glo Assoociates, 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 .

44 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 . 19 : "A court's prior

judicial construction of a statute trumps an agency construction

otherwise entitled to

Chevron deference only if the prior cour t

decision holds that its construction follows from

the unambiguou s

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

- 45 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 o f

Erie , 220_F .3d 193 (3d Cir . 2000) . The Court carefully reviewed

the legislative history to reach its conclusion . See id .

208 .

at 205-

.

Then out popped a contrary, regulation from the EEOC . The

District Court judge faced with the regulation vs . precedent

question reasoned tha t

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 merel y

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 ,

supra at 445 .

The District Court then analyzed the pre -regulation

precedent on point ,

and concluded that " Like its arguments fro m

legislative history, the * * * [Third Circuit'

appeals t o

general congressional intent and the balancing of competing

policy considerations would seem unnecessary if its decision-were

the only permissible construction of the statute ."

n .10 ; see also, e .g .,

Id .

at 450

Mayo Found . for Med . Educ . & Research v .

United States , 503 F . Supp . 2d 1164, 1174 (D . Minn . 2007)

46 (drawing similar distinction in light . of Brand X ), revd . 568 F .3d

675 (8th Cir . 2009) .

AARP -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 wha t

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", 1 2

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

47 to conclude that the Court was using legislative history to

discern the best reading of ambiguous statutory language in ligh t

of the specific problems its drafters had in mind . See id .

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 amoun t

properly includible therein" is validly issued .

Few 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 Regulation s

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

- 48 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

49 comments before publishing these temporary regulations, nor did

he claim good cause for skipping this step . '

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

practic e

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 ta x

regulations .

'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 .

50 A.

The Interpretive Exceptio n

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 authorit y

of section 7805(a), in contrast to "legislative" regulations, b y

which we and other tax specialists mean those regulations issued

under a more specific authority from Congress . 9

8The Treasury Decision does say that 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 .

9Even 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,

(continued . . .)

51 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, 486487 (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 "advis e

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 legislativ e

9( . . .continued)

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) .

10Though 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 mos t

authoritative interpretation of the APA * * * which we have

repeatedly given great weight", citing examples) .

- 52

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 110 6

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) ."

Am . Mining Cond . v Mine Safety & Healt h

"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 . , 10 3

(continued . . .)

- 53 Admin . ,

supra 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 ha s

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 fours ways of finding agency intent hav e

developed over time . A subsequent case in the D .C . Circui t

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

Healt h

11 ( . . . continued )

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, 4 .5 F .3d 7 (2d Cir . 1995) .

'2One 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) .

54 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 . 2.004) (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 Am . Mining Cong . v . Mine Safety & Healthy Admin . ,

supra --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) .1 3

"The Eighth Circuit addressed the characterization of

interpretive versus legislative rules in Drake v . Honeywell,

In a brief discussion, it

Inc . , 797 F . 2d 603 ( 8th Cir . 1986 ) .

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 . Co mm issioner , 207 F .3d

(continued . . .)

- 55 1 .

Does the Secretary Have Authority To Issue

Rules With the Force of Law ?

American Mining asks first whether a particular agency ha s

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

13 ( . . . continued )

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 thenexisting law--namely, Section 402(e)(3), together with it s

regulations"), and appeared to give them legal effect, id . at

1075 (citing the regulations for its conclusions without further

sources) .

56 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 regulation s

explicitly under section 7805 alone and the other under both

- 57 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 th e

majority : Does Brand X require an agency's- .interpretation to be

embodied in a legislative rather thah .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 ." Certainly, as the Ninth Circuit recognized in

Bakersfield , 568 F .3.d 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, whic h

14The 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, 58.7 (2000) . It seems to follow that if an agency wants

to trump judicial precedent, it has to issue legislative rules .

58 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 tell s

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 11.12 . So even if our reasoning on this second way of

finding agency intentis 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 7 .805 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 .' 5

"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 .

- 59 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 o f

"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 363364 .

60 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 ." The legislative history does

not even mention the APA, and, both, the Supreme Court and the APAitself provide that exceptions to the APA's terms cannot b e

inferred--much less inferred from an absence in the legislativ e

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 . * * *

"Though issuing a simultaneous NPRM and seeking posteffective 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 .

61 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 facilitatin g

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 achance to comment only after making the

regulations effective does not comply with the APA . See, e .g .,

Chrysler Corp v . Brown ,

supra at 315 ;

Paulsen v . Daniels , 413

62 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 ,

supra at 313 ("regulations subject to the APA cannot be

afforded the `force and effect of law' if not promulgate d

pursuant to the statutory procedural minimum found in that Act") ;

18Respondent 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 it 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 successfully promulgated interpretive

rules, we would reach this same point .

- 63 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 .