dissenting: For the reasons explained below, I respectfully disagree with the majority opinion.
(1) The majority opinion fails properly to distinguish the pre-1990 “no-regulation environment” of the cited court opinions from the environment or authority that came into existence upon promulgation in 1990 of section 1.882-4(a)(2) and (3)(i) and (ii), Income Tax Regs.
With regard to such a change in the regulatory environment applicable to a particular Federal law question, the Supreme Court recently stated in Natl. Cable & Telecomm. Association v. Brand X Internet Servs., 545 U.S. _, 125 S. Ct. 2688, 2700 (2005):
allowing 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, and therefore contains no gap for the agency to fill, displaces a conflicting agency construction. [Citing Chevron U.S.A., Inc. v. Natural Res. Ref. Council, Inc., 467 U.S. 837, 843-844 n.11 (1984).]
Based on this recent Supreme Court explanation in Natl. Cable & Telecomm. Association of Chevron deference to be given Federal agency regulatory authority, I do not believe that 1930s and 1940s court opinions construing the predecessor of section 882(c)(2) preempted respondent’s regulatory authority to promulgate in 1990 a specific administrative rule with regard to section 882(c)(2). See Chevron U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-844 (1984).
In light of Natl. Cable, we should be focusing herein on an analysis of the reasonableness of the filing deadline reflected in section 1.882-4(a)(2) and (3)(i) and (ii), Income Tax Regs., as promulgated in 1990, vis-a-vis the filing deadline reflected in the court opinions that had been extant for approximately 50 years. The majority opinion’s analysis, see majority op. pp. 136-138, however, of the reasonableness of the 1990 regulation is quite inadequate.
For the reasons set forth in the discussion below, section 1.882-4(a)(2) and (3)(i) and (ii), Income Tax Regs., constitutes a reasonable administrative rule promulgated by the Commissioner and the Treasury Department and reasonably fills in a gap in the statutory language of section 882(c)(2).
(2) The 1930s and 1940s court opinions adopted and applied a tax return filing deadline to the ability of foreign corporations to qualify for deductions and credits under the predecessor of section 882(c)(2). The court opinions in Taylor Sec., Inc. v. Commissioner, 40 B.T.A. 696 (1939); Ardbern Co. v. Commissioner, 120 F.2d 424 (4th Cir. 1941), modifying and remanding 41 B.T.A. 910 (1940); Blenheim Co. v. Commissioner, 125 F.2d 906 (4th Cir. 1942), affg. 42 B.T.A. 1248 (1940); and Georday Enters. v. Commissioner, 126 F.2d 384 (4th Cir. 1942), affg. a Memorandum Opinion of the Board of Tax Appeals, clearly clarified and modified Anglo-Am. Direct Tea Trading Co. v. Commissioner, 38 B.T.A. 711 (1938), and adopted and applied a tax return filing “deadline”, “timely filing date”, “cutoff”, or “terminal date” (whatever one chooses to call it) to the entitlement of foreign corporations to deductions and credits under the predecessor of section 882(c)(2).
As the Board of Tax Appeals explained in Taylor Sec., Inc. v. Commissioner, supra at 703-704:
In view of such a specific prerequisite [that foreign corporate taxpayers file tax returns] it is inconceivable that Congress contemplated by that section that taxpayers could wait indefinitely to file returns and eventually when the respondent determined deficiencies against them they could then by filing returns obtain all the benefits to which they would have been entitled if their returns had been timely filed. Such a construction would put a premium on evasion, since a taxpayer would have nothing to lose by not filing a return as required by statute.
In light of the above 1939 clarification by the Board of Tax Appeals to its earlier 1938 opinion arguably to the contrary in Anglo-Am. Direct Tea Trading Co., it is Taylor Sec., Inc., not Anglo-Am., that is to be regarded as the lead pre-regulation court case. See Blenheim Co. v. Commissioner, supra at 910, in which the Court of Appeals for the Fourth Circuit acknowledges that it is Taylor Sec., Inc. that (in spite of the prior Anglo-Am. opinion) first adopted a foreign corporation tax return “terminal date” or filing deadline (for purposes of allowing deductions and credits to foreign corporations).
Thus, for more than 50 years, prior to 1990 when the regulation in issue herein was promulgated and since the 1939 issuance of the opinion of the Board of Tax Appeals in Taylor Sec., Inc., section 882(c)(2) and its predecessor were interpreted and were held by Federal courts to be unclear and incomplete as to the above corporate filing deadline, and the courts recognized the need for and applied such a deadline. As the Court of Appeals for the Fourth Circuit stated explicitly in Blenheim Co. v. Commissioner, supra at 908:
It is true that this section contains no reference to a time element. Nevertheless, we feel that the so-called normal tax return filed by petitioner on Form 1120 was not a sufficient or timely compliance with Section 233 [the predecessor of section 882(c)(2)] to entitle the petitioner to the deductions claimed therein. * * *
The above “judicially recognized need” for a foreign corporate filing deadline (for purposes of allowing deductions and credits under section 882(c)(2) and its predecessor) provides perhaps the strongest support for the conclusion that the regulation in issue is reasonable (i.e., the regulation simply reflects the attempt by respondent and by the Treasury Department to address via a formally promulgated regulation the same need the courts addressed in Taylor Sec., Inc. v. Commissioner, supra, and its progeny).
(3) The majority opinion’s description of section 1.882-4(a)(2) and (3)(i), Income Tax Regs., as simply a reflection of respondent’s “unsuccessful litigating position”, majority op. p. 135, is inaccurate, which inaccuracy perhaps is explained by the failure of the majority opinion to consider the specifics of the filing deadline set forth in the regulation.
Although it early on, see majority op. note 4, sets forth the language of section 1.882-4(a)(3)(i), Income Tax Regs., the majority opinion provides only two single-sentence, general explanations of the filing deadline set forth therein, see majority op. pp. 98-99, 127, and nowhere does the majority opinion attempt to compare the filing deadline that was adopted and applied by Taylor Sec., Inc. and its progeny with the specifics of the filing deadline set forth in the regulation.
In that regard, the following explanation of the specifics of the filing deadline set forth in section 1.882-4(a)(2) and (3)(i), Income Tax Regs., may be helpful.
Section 1.882-4(a)(2), Income Tax Regs., and the first sentence of subparagraph (3)(i), explain that the “timely filing” deadline set forth therein applies only in determining a foreign corporation’s entitlement to deductions and credits under section 882(c)(2). It does not constitute a generic timely filing deadline that applies to foreign corporations under other provisions of the Code. For example, the timely filing deadline of the above regulation does not apply for purposes of section 6072(c).
Section 1.882-4(a)(3)(i), Income Tax Regs., then proceeds, for purposes of allowing deductions and credits under section 882(c)(2) for a current taxable year, to divide foreign corporations required to file Federal tax returns into two categories: First, those that for the prior taxable year filed an income tax return (and those for which the current taxable year is the taxpayers’ first taxable year for which a Federal tax return is required) (category 1 corporation) and, second, those that for the prior taxable year were required to but did not file a Federal tax return (category 2 corporation).
For purposes of allowing deductions and credits under section 882(c)(2) for the current year, section 1.882-4(a)(3)(i), Income Tax Regs., provides that for a category 1 corporation (prior year tax return filed or first year tax return required) the filing deadline for the current taxable year is a fixed 18 months after the due date for the current year tax return. Where, prior to the filing by a category 1 corporation of its current year tax return within this 18-month period, respondent notifies the corporation (that no tax return has been filed for the current year and that no deductions or credits under section 882(c)(2) will be allowed), the 18-month filing deadline set forth in the regulation represents a lengthening of the return filing deadline that would have applied under Taylor Sec., Inc. v. Commissioner, 40 B.T.A. 696 (1939), and its progeny (under which respondent’s prior notification would have established the deadline).
Where a category 1 corporation files its tax return for the current year after the 18-month period, but before respondent notifies the taxpayer, the fixed 18-month filing deadline of the regulation would apply, and the regulation represents a shortening of the filing deadline that would have applied under Taylor Sec., Inc. and its progeny.
For purposes of allowing the deductions and credits under section 882(c)(2) for the current year for a category 2 corporation (tax return for the prior year not filed), section 1.882-4(a)(3)(i), Income Tax Regs., provides that a foreign corporation must file its tax return for the current year before the earlier of either respondent’s notification to the corporation (that no tax return has been filed for the current year and that no deductions or credits under section 882(c)(2) will be allowed) or 18 months after the due date for the current year tax return. Where respondent so notifies a category 2 corporation within the specified 18-month period, this filing deadline constitutes the same filing deadline as would have applied under Taylor Sec., Inc. and its progeny.
For a category 2 corporation that files its tax return after the 18-month period but before respondent notifies the taxpayer, the 18-month filing deadline of the regulation would apply, and the regulation represents a shortening of the filing deadline that would have applied under Taylor Sec., Inc. and its progeny.
In effect, the filing deadline set forth in section 1.882-4(a)(3)(i), Income Tax Regs., significantly incorporates and reflects aspects of the filing deadline of Taylor Sec., Inc. and its progeny, but it shortens that deadline to no later than 18 months after the due date of the current year tax return, and it lengthens that deadline to 18 months after the tax return due date for a foreign corporation that filed a tax return for the prior year and that received notification from respondent prior to filing its tax return.1
As is evident, contrary to the majority opinion’s contention that section 1.882-4(a)(2) and (3)(i), Income Tax Regs., “simply adopts respondent’s unsuccessful litigating position”, majority op. p. 136, or seeks to “resurrect * * * [respondent’s] failed litigating position”, majority op. p. 148, the regulation in issue incorporates significant aspects of the judicially crafted filing deadline that was in effect for many years prior to 1990.
It would seem obvious that the increased number of foreign corporation Federal income tax returns filed with respondent in today’s world (as distinguished from the 1930s when the cases relied on by the majority opinion were decided) and the increasingly complex tax laws and tax administration applicable thereto would support, per se, respondent’s effort, by properly promulgated regulation, to modify and clarify, in the above modest manner, the return filing deadline that has been applicable to foreign corporations.
Further, it is appropriate to emphasize that the regulation at issue herein provides in subdivision (ii) of section 1.882-4(a)(3), Income Tax Regs., a good cause, facts and circumstances exception to the return filing deadline otherwise applicable under section 1.882-4(a)(3)(i), Income Tax Regs. This aspect of the 1990 regulation is consistent with the facts and circumstances filing deadline that was applied by the Court of Appeals for the Fourth Circuit in Ardbern Co. v. Commissioner, 120 F.2d 424 (4th Cir. 1941).
Lastly on this point, in 1938 respondent’s litigating position in Anglo-Am. Direct Tea Trading Co. v. Commissioner, 38 B.T.A. 711 (1938), was that the return filing deadline for purposes of the predecessor of section 882(c)(2) was the same as the statutory due date for filing foreign corporation tax returns. By 1941, if not earlier, respondent’s litigating position had changed, and respondent was conceding that foreign corporation tax returns filed late but before respondent’s notification to foreign corporations would be considered timely under the predecessor of section 882(c)(2). See Ardbern Co. v. Commissioner, supra at 426.
In summary on this point, the filing deadline reflected in section 1.882-4(a)(3)(i) and (ii), Income Tax Regs., incorporates significant aspects of the judicially crafted foreign corporation tax return filing deadline and is quite different from respondent’s original litigating position in 1938 in Anglo-Am. Direct Tea Trading Co.
(4) The majority opinion, see majority op. p. 144, suggests that section 1.882-4(a)(2) and (3)(i), Income Tax Regs., is inconsistent with the Treasury regulation promulgated in 1957; namely, section 1.882-4, Income Tax Regs. To the contrary, the 1957 regulation was silent as to any tax return filing deadline under section 882(c)(2); just as section 882(c)(2) is silent still today as to any such deadline. Section 1.882-4(a)(2) and (3)(i) and (ii), Income Tax Regs., thus fills a gap not only in the language of section 882(c)(2), but also in the language of the 1957 regulation; just as Taylor Sec., Inc. and its progeny filled a gap in the language of the predecessor of section 882(c)(2).
(5) In its discussion of the legislative reenactment doctrine, see majority op. pp. 138-141, the majority opinion ignores a significant limitation on the legislative reenactment doctrine as follows:
[The legislative reenactment doctrine] does not apply where nothing indicates that the legislature had its attention directed to the administrative interpretation upon reenactment. [2B Singer, Sutherland Statutory Construction § 49:09 (6th ed. 2000).]
In this case, in reenacting section 882(c)(2) and its predecessor, no evidence indicates that Congress had “its attention directed” to any of the 1930s and 1940s court opinions involving a deadline for foreign corporations to file their tax returns in order to preserve deductions and credits under the predecessor of section 882(c)(2). Absent such evidence, any application herein of the legislative reenactment doctrine would be inappropriate.2
As the Court of Appeals for the Seventh Circuit explained in Bell Fed. Sav. & Loan Association v. Commissioner, 40 F.3d 224, 230 (7th Cir. 1994), revg. T.C. Memo. 1991-368:
However, neither * * * [the taxpayer] nor the tax court has pointed to any occasion when Congress even mentioned the old — or new — regulation. This fact is important to the workings of the re-enactment doctrine for a relevant factor in a court’s review is “the degree of scrutiny Congress has devoted to the regulation during subsequent re-enactments of the statute.” * * * [Citing Natl. Muffler Dealers Association, Inc. v. United States, 440 U.S. 472, 477 (1979).] The regulations and statutes involved in this area are too complex for us to venture to assume Congress’s intent through its silence. Therefore, we choose to not second-guess the Treasury on this matter. The Sixth Circuit was correct when it stated:
“The re-enactment doctrine is merely an interpretive tool fashioned by the courts for their own use in construing ambiguous legislation. It is most useful in situations where there is some indication that Congress noted or considered the regulations in effect at the time of its action. Otherwise, the doctrine may be as doubtful as the silence of the statutes and legislative history to which it is applied.” * * * [Quoting Peoples Fed. Sav. & Loan Association v. Commissioner, 948 F.2d 289, 302-303 (6th Cir. 1991) (fn. ref. omitted), revg. T.C. Memo. 1990-129.]
We also have applied this particular limitation to the legislative reenactment doctrine. In Ashland Oil, Inc. v. Commissioner, 95 T.C. 348, 363 (1990),3 we refused to apply the legislative reenactment doctrine to a revenue ruling because “Without affirmative indications of congressional awareness and consideration, we decline to cloak this revenue ruling with the aura of legislative approval.”
(6) Finally, rather than expressing sympathy for petitioner, see majority op. pp. 138, 141-142, whose Federal income tax returns were due on November 15 of each year, the fact that petitioner filed each of its 1993, 1994, 1995, and 1996 Federal corporate income tax returns on July 23, 1999, some 2-5 years after the return due dates and 9 years after section 1.882-4(a)(2) and (3)(i), Income Tax Regs., was promulgated is hardly indicative of a foreign corporation seeking to comply with U.S. tax laws.
In conclusion, it is not respondent herein who is attempting to resurrect anything, see majority op. pp. 147-148. Rather, it is the majority opinion that would resurrect Anglo-Am. Direct Tea Trading Co. v. Commissioner, 38 B.T.A. 711 (1938), and that would ignore later Board of Tax Appeals and Court of Appeals opinions and litigation that concluded that the statutory language of the predecessor of section 882(c)(2) was incomplete and ambiguous and necessitated the adoption and application by the courts of a foreign corporation filing deadline for purposes of the predecessor of section 882(c)(2).
Section 1.882-4(a)(2) and (3)(i) and (ii), Income Tax Regs., reflects the Commissioner’s and the Secretary’s consistent and similar conclusion. The specific foreign corporation tax return filing deadline that is reflected in the regulation incorporates aspects of the judicially crafted deadline, is flexible to take into account unusual situations, but also is modestly tightened up to reflect updated tax administration concerns relating to foreign corporate tax compliance.
For the reasons stated, I respectfully dissent from this Opinion which invalidates section 1.882-4(a)(2) and (3)(i), Income Tax Regs.
Holmes, J., agrees with this dissenting opinion.I regard the notification to foreign corporations described in sec. 1.882-4(a)(3)(i), Income Tax Regs, (that no tax return has been filed for the current year and that no deductions or credits under sec. 882(c)(2) will be allowed), as not materially different from the notification mentioned in Taylor Sec., Inc. v. Commissioner, 40 B.T.A. 696 (1939), and its progeny (that respondent has prepared a substitute tax return or issued a notice of deficiency in which a corporation’s deductions and credits under sec. 882(c)(2) were not allowed).
A vague statement in one of respondent’s briefs that Congress “was aware of” the early Board of Tax Appeals and other court opinions is puzzling and ambiguous.
We also have stated that, “we do not believe that the legislative reenactment doctrine can be applied to bar reasonable amendments to regulations where * * * the change is made only prospectively from the date of the announcement of the proposed change.” Wendland v. Commissioner, 79 T.C. 355, 384 (1982), affd. sub nom. Redhouse v. Commissioner, 728 F.2d 1249 (9th Cir. 1984). Note the prospective only effective date of the regulation at issue herein, for taxable years ending after July 31, 1990. Sec. 1.882 — 4(a.)(3)(i), Income Tax Regs.