dissenting: Respondent has required petitioner to defer its deductions for interest paid to its foreign parent until such time as such interest actually was paid. Respondent has changed petitioner from the accrual method of accounting to the cash method of accounting with regard to such interest on the authority of section 267(a)(2) and section 1.267(a)-3(b), Income Tax Regs, (section 1.267(a)-3(b)). Believing that it has determined the matching principle inherent in section 267, the majority invalidates section 1.267(a)-3(b) on the basis that it violates such principle. For good measure, it states that, assuming that the regulation were not invalid, retroactive application of it to the years here in issue violates due process. I can agree on neither count and, thus, dissent.
Matching Principle
The majority states:
The matching principle of section 267(a)(2) is that an accrual basis taxpayer is not entitled to deduct an accrued item if the accrued item is payable to a related person, and the item is not currently includable in the payee’s gross income because of the payee’s method of accounting. * * * When this principle applies, deductions must be deferred until the expense item is includable in the gross income of the person to whom the payment is to be made. [Majority op. p. 661; emphasis added.]
The majority determines that the related person in this case (the foreign parent) has no gross income on account of the interest in question because of the combined terms of the treaty and the Internal Revenue Code. Majority op. p. 665. Accordingly, the majority concludes:
An overall reading of the statute and legislative history does not permit the promulgation of regulations that go beyond applying the matching principle of section 267(a)(2). [Majority op. p. 670.]
For the majority the matching principle comes into play if, and, only if, by reason of the method of accounting of the related payee, a mismatch occurs. See majority op. p. 661. For the majority, a mismatch occurs when “the item is not includable in the payee’s income during the same year that it would otherwise be deductible by the taxpayer.” Majority op. pp. 667-668. The majority concludes, quite logically, that, if an item is excluded from gross income (for instance, because of a treaty), then the recipient’s method of accounting for that item is irrelevant for determining gross income:
A method of accounting for income only determines when an item is includable in income. As such, a method of accounting for gross income is irrelevant and never comes into play if the item is excluded from gross income. * * * [Majority op. p. 669.]
If, because the item is excluded from gross income, the related payee’s method of accounting for the item is irrelevant to a determination of gross income, then, to the majority, a match is impossible, and the matching principle can have no application. At a purely technical level, the majority seems to be saying that it will not read the statute to require it (the majority) to make an inquiry that it views as senseless; i.e., what is a related person’s method of accounting for something it doesn’t have? There is, of course, a certain force to such reasoning. Were it not for another portion of section 267, I would be persuaded.
Section 267(b)(9)
Section 267(b)(9) includes in the list of relationships that are subject to the rule of section 267(a)(2) the following:
A person and an organization to which section 501 (relating to certain educational and charitable organizations which are exempt from tax) applies and which is controlled directly or indirectly by such person or (if such person is an individual) by members of the family of such individual; * * *
With certain exceptions, organizations to which section 501 applies (section 501 organizations) are exempt from tax. See sec. 501(a). Whether or not such organizations technically have gross income is not, I think, the point. The point is that the inclusion of section 501 organizations and their controlling persons within the relationships subject to section 267(a)(2) brings into question the unstated policy consideration inherent in the majority’s technical analysis; i.e., that there is no abuse if timing makes no difference (because the item does not constitute gross income) to the recipient. Section 267(b)(9) leads to the conclusion that, at least in some circumstances, not paying tax on the amount received is not that important to Congress. The missing piece is why. not paying tax is unimportant to Congress.1
The legislative history of section 267(b)(9) is not illuminating. The provision came into the Code in 1954, and it is thought to have been the legislative response to the decision of this Court in Kaplan v. Commissioner, 21 T.C. 134 (1953). See Mertens, Law of Federal Income Taxation, Code Commentary, sec. 267(b):1, at 1332 n.6 (1989). In Kaplan, the Court allowed the taxpayer to deduct a loss under the predecessor of section 267(a)(1) on the sale of stock to a tax-exempt membership organization controlled by the taxpayer and his family, since the predecessor of section 267(b)(2) did not encompass control of a nonstock corporation. Reports of both the Committee on Ways and Means and the Committee on Finance use virtually identical language to describe the operation of new section 267(b)(9). For example, the report of the Committee on Finance states:
In transactions between related taxpayers present law denies losses on sales or exchanges of property and deductions for unpaid expenses or interest.
The House and your committee’s bill tightens present law by expanding the concept of related taxpayers to include * * * (3) an exempt organization controlled by a person or his family. Dealings between these parties are no less subject to abuse than those covered by present law.
[S. Rept. 1622, 83d Cong., 2d Sess. 38 (1954).]
See also H. Rept. 1337, 83d Cong., 2d Sess. 32 (1954). Although section 267(b)(9) may have been enacted in response to Kaplan, there is nothing in the statute (the 1954 Code version or presently) to indicate that section 501 organizations and their controlling persons are not equally subject to both the loss disallowance rule of 267(a)(1) and the unpaid expense rule of section 267(a)(2). Indeed, the legislative history does not differentiate between such categories in describing the operation of new section 267(b)(9). There is no case on point. I would conclude that, for whatever reason, Congress intended the rule of present section 267(a)(2) to apply to section 501 organizations and their controlling persons.
To me, the application of section 267(a)(2) to section 501 organizations and their controlling persons brings into question the implicit limitation that the majority finds in the matching principle of section 267(a)(2). Since it is unclear why section 267(a)(2) applies to section 501 organizations and their controlling persons (which I believe it does), it is difficult for me to see how one reason for not paying tax (i.e., exemption from paying tax) should be treated differently than any other reason (i.e., the item does not constitute gross income). The majority does not tell us what policy considerations inform its judgment as to the limits of the matching principle. Given the uncertainty as to Congress’ policy considerations, I think that we must accord the Treasury much leeway in writing its regulations, and I would not hold section 1.267(a)-3(b) invalid.
Standard of Review
The majority has well stated the standard for reviewing a regulation:
In determining the validity of section 1.267(a)-3, * * * our role is limited. We ordinarily defer to the regulation if it “ ‘[implements] the congressional mandate in some reasonable manner.’ ” An interpretative regulation is a reasonable implementation of the congressional mandate if it “harmonizes with the plain language of the statute, its origin, and its purpose.” * * *
Where the Commissioner acts under a specific grant of authority, our primary inquiry is whether the regulation is not manifestly contrary to the statute and is not arbitrary or capricious. [Majority op. p. 666; citations omitted.]
I would add only the following: The role of the judiciary in reviewing Treasury regulations begins and ends with assuring that the Commissioner’s regulations fall within her authority to implement the congressional mandate in some reasonable manner. United States v. Correll, 389 U.S. 299, 307 (1967).
Given the application of section 267(a)(2) to a tax-exempt organization and its controlling persons, sec. 267(b)(9), I do not find the interest rule of section 1.267(a)-3(b) an unreasonable interpretation of the statute. That is particularly so given, as the majority acknowledges, majority op. pp. 669-670, the contemplation of just such a rule in the legislative history of section 267(a)(3). The flaw in the majority’s reasoning is in its interpretation of the matching principle. Its technical analysis is insufficient to illuminate some principled distinction between the case of a tax-exempt organization and a treaty exemption. The boundaries of the matching principle are unclear because the policy behind the principle is unclear. Whatever those boundaries are, I am not convinced that they include a tax-exempt organization and exclude a treaty exemption. To me, it is reasonable to treat such cases alike. I cannot find the regulation invalid for the reasons stated by the majority.
Retroactivity
The majority finds
the retroactive application of section 1.267(a)-3, Income Tax Regs., to petitioner to be unduly harsh and oppressive. Accordingly, we hold that the regulation, as applied to petitioner, violates the Due Process Clause. * * * [Majority op. p. 679.]
The majority’s application of a promptness requirement, as a matter of due process, to the regulations process is novel, and raises many interesting issues: e.g., what principled distinction can be drawn between interpretative regulations and administrative regulations? It suffices, however, for me to say that I do not agree that the application of section 1.267(a)-3(b) to petitioner is “so harsh and oppressive as to transgress the constitutional limitation” of due process. United States v. Carlton, 512 U.S._,_, 114 S. Ct. 2018, 2022 (1994) (quoting Welch v. Henry, 305 U.S. 134, 147 (1938)). Simply put, petitioner was on notice of what position the regulations might take with regard to interest, and, for that reason, it is difficult for me to accord much weight to any reliance petitioner might have placed on the failure of the Treasury to state its position. The majority does not say why delay, per se, can give rise to a harsh and oppressive result, but I assume that the gravamen of its complaint is the taxpayer’s reliance on a contrary assumption. The majority acknowledges that the legislative history of section 267(a)(3) contemplates that the regulations to be issued might take just that position with regard to interest taken in section 1.267(a)-3(b). Majority op. p. 670. That being the case, and no contrary regulations having been issued in the interim, I fail to see that petitioner has a claim that rises to the level of a constitutional violation of due process. I would not hold the regulation invalid on that ground.
HIamblen and Parr, JJ., agree with this dissent.Congress’ reason may have been simply to discourage the accrual of a deduction for an amount that, because of the close relationship between the payor and payee, might never be paid. Cf. H. Rept. 1546, 75th Cong., 1st Sess. (1937), 1939-1 C.B. (Part 2) 704, 724-725. H. Rept. 1546 accompanied H.R. 8234, 75th Cong., 1st Sess. (1937), which became the Revenue Act of 1937, ch. 815, 50 Stat. 813. Sec. 301 of the Revenue Act of 1937 added a new subsec. (c) to sec. 24 of the Revenue Act of 1936, ch. 690, 49 Stat. 1648. That subsec. (c) is the precursor to sec. 267(a)(2). At the cited pages of H. Rept. 1546, the Ways and Means Committee, in describing the abuse that the new rule of subsec. (c) was designed to counter, includes nonpayment: “Since the creditor was on a cash basis, he reported no income and thus the sum involved escaped income tax altogether, for usually in these cases if the payment were finally made it was done at a time when the creditor had offsetting losses.” (Emphasis added.) Of course, a similar potential exists if the payee is a foreign person, exempt or not exempt from the income tax.