dissenting.
The value of certain and predictable rules of law is often underestimated. Particularly in the field of taxation, there is a strong interest in enabling taxpayers to predict the legal consequences of their proposed actions, and there is an even stronger general interest in ensuring that the responsibility for making changes in settled law rests squarely on the shoulders of Congress. In this case, these interests are of decisive importance for me.
The question of tax law presented by this case was definitively answered by the Board of Tax Appeals in 1941. See Miller v. Commissioner, 45 B. T. A. 292, 299; Budd International Corp. v. Commissioner, 45 B. T. A. 737, 755-756.1 Those decisions were consistently followed for over 40 years, see, e. g., Smith v. Commissioner, 66 T. C. 622, 648 (1976); Downer v. Commissioner, 48 T. C. 86, 91 (1967); Estate of Foster v. Commissioner, 9 T. C. 930, 934 (1947), and the Internal Revenue Service had announced its acquiescence in the decisions. See 1941-2 Cum. Bull. 9 (acquiescing in Miller); 1942-2 Cum. Bull. 3 (acquiescing in Budd International). Although Congress dramatically revamped the Tax Code in 1954, see Internal Revenue Code of 1954, Pub. L. 83-591, 68A Stat. 3, it did not modify the Tax Court’s approach to this issue.
It was only in 1977 (after the Finks had transferred their stock to the corporation), that the Commissioner of Inter*102nal Revenue retracted his acquiescence in the Tax Court’s interpretation.2 But instead of asking Congress to reject the longstanding interpretation, the Commissioner asked the courts to take another look at the statute. Two Courts of Appeals accepted the Commissioner’s new approach, and reversed the Tax Court without giving much, if any, weight to the Tax Court’s nearly half-century-old construction.3 Tilford v. Commissioner, 705 F. 2d 828 (CA6 1983); Schleppy v. Commissioner, 601 F. 2d 196 (CA5 1979). After these two reversals, the Tax Court itself reversed its position in 1984, believing that “[r]ecent appellate level disapproval of the position renders it inappropriate for us to continue to justify the position solely on the basis of its history.” Frantz v. Commissioner, 83 T. C. 162, 174-182 (1984), aff’d, 784 F. 2d 119 (CA2 1986), cert. pending, No. 86-11.
1 believe that these courts erred in reversing the longstanding interpretation of the Tax Code. The Commissioner certainly had a right to advocate a change, but in my opinion he should have requested relief from the body that has the authority to amend the Internal Revenue Code. For I firmly believe that “after a statute has been construed, either by this Court or by a consistent course of decision by other federal judges and agencies, it acquires a meaning that should be as clear as if the judicial gloss had been drafted by the Congress itself.” Shearson/American Express Inc. v. McMahon, 482 U. S. 220, 268 (1987) (Stevens, J., concurring in part and dissenting in part). A rule of statutory construction that “has been consistently recognized for more than 35 years” acquires a clarity that “is simply beyond per*103adventure.” Herman & MacLean v. Huddleston, 459 U. S. 375, 380 (1983).
There may, of course, be situations in which a past error is sufficiently blatant “to overcome the strong presumption of continued validity that adheres in the judicial interpretation of a statute.” Square D Co. v. Niagara Frontier Tariff Bureau, Inc., 476 U. S. 409, 424 (1986). But this is surely not such a case.4 The Court makes no serious effort to demonstrate that its result is compelled by — or even consistent with — the language of the statute.5 The mere fact that the Court’s interpretation of the Internal Revenue Code may be preferable to the view that prevailed for years is not, in my opinion, a sufficient reason for changing the law.
If Congress lacked the power to amend statutes to rectify past mistakes, and if the only value to be achieved in constru*104ing statutes were accurate interpretation, it would be clear that a court or agency should feel free at any time to reject a past erroneous interpretation and replace it with the one it believes to be correct. But neither of these propositions is true; Congress does have the ability to rectify misinterpretations, and, once a statute has been consistently interpreted in one way, there are institutional and reliance values that are often even more important than the initial goal of accurate interpretation.
The relationship between the courts or agencies, on the one hand, and Congress, on the other, is a dynamic one. In the process of legislating it is inevitable that Congress will leave open spaces in the law that the courts are implicitly authorized to fill. The judicial process of construing statutes must therefore include an exercise of lawmaking power that has been delegated to the courts by the Congress. But after the gap has been filled, regardless of whether it is filled exactly as Congress might have intended or hoped, the purpose of the delegation has been achieved and the responsibility for making any future change should rest on the shoulders of the Congress. Even if it is a consensus of lower federal-court decisions, rather than a decision by this Court, that has provided the answer to a question left open or ambiguous in the original text of the statute, there is really no need for this Court to revisit the issue. Moreover, if Congress understands that as long as a statute is interpreted in a consistent manner, it will not be reexamined by the courts except in the most extraordinary circumstances, Congress will be encouraged to give close scrutiny to judicial interpretations of its work product. We should structure our principles of statutory construction to invite continuing congressional oversight of the interpretive process.6
*105Our readiness to reconsider long-settled constructions of statutes takes its toll on the courts as well. Except in the rarest of cases, I believe we should routinely follow Justice Cardozo’s admonition:
“[T]he labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one’s own course of bricks on the secure foundation of the courses laid by others who had gone before him.” B. Cardozo, The Nature of the Judicial Process 149 (1921).
In addition to the institutional ramifications of rejecting settled constructions of law, fairness requires consideration of the effect that changes have on individuals’ reasonable reliance on a previous interpretation. This case dramatically illustrates the problem. Mr. Fink surrendered his shares in December 1976. Mrs. Fink surrendered hers in January 1977. At that time the law was well settled: the Tax Court had repeatedly reaffirmed the right to deduct such surrenders as ordinary losses, and the Commissioner had acquiesced in this view for 35 years.7 See supra, at 101. It was only on April 11, 1977, that the Commissioner announced his non-*106acquiescence. See Internal Revenue Bulletin No. 1977-15, p. 6 (April 11, 1977). “In my view, retroactive application of the Court’s holding in cases such as this is so fundamentally unfair that it would constitute an abuse of the Commissioner’s discretion.” Dickman v. Commissioner, 465 U. S. 330, 353, n. 11 (1984) (Powell, J., dissenting).
I respectfully dissent.
The principle applied in those decisions dates back even further. See Burdick v. Commissioner, 20 B. T. A. 742 (1930), aff’d, 59 F. 2d 395 (CA3 1932); Wright v. Commissioner, 18 B. T. A. 471 (1929).
The Commissioner appears to have begun reconsidering his position around 1969. See Note, Frantz or Fink: Unitary or Fractional View for Non-Prorata Stock Surrenders, 48 U. Pitt. L. Rev. 905, 908-909 (1987) (hereafter Note).
Ignoring the import of the long line of Tax Court eases, one court stated: “We find no Court of Appeals decision that determines the correctness of these decisions. We therefore write on a clean sheet.” Schleppy v. Commissioner, 601 F. 2d 196, 198 (CA5 1979).
Strong arguments can be made in support of either view, as the split between the Second and Sixth Circuits and the dissenting opinion of the four Tax Court Judges indicate. See Frantz v. Commissioner, 83 T. C. 162, 187 (1984) (Parker, J., with whom Fay, Goffe, and Wiles, JJ., joined, dissenting). See also Bolding, Non-Pro Rata Stock Surrenders: Capital Contribution, Capital Loss or Ordinary Loss?, 32 Tax Law. 275 (1979); Note, supra. Whether it makes sense to encourage stock surrenders that may enable a sinking corporation to stay afloat in cases like this is at least debatable. But whatever the correct policy choice may be, I would adhere to an interpretation of technical statutory language that has been followed consistently for over 40 years until Congress decides to change the law. Surely that is the wisest course when the language of the statute provides arguable support for the settled rule.
Uncharacteristically, the Court does not begin its analysis by quoting any statutory language, cf. Blue Chip Stamps v. Manor Drug Stores, 421 U. S. 723, 756 (1975) (POWELL, J., concurring), either from § 165 of the Code, which defines “losses,” or from § 1016, which deals with adjustments to basis. Rather, it launches into a discussion of voluntary contributions to capital, see ante, at 94-95, even though this was clearly not such a contribution because it had no impact on the net worth of the corporation. The opinion includes a discussion of a hypothetical example, ante, at 96, n. 10, and policy reasons supporting the Court’s result, but surprisingly little mention of statutory text. The statutory basis for the taxpayer’s position is adequately explained in the opinions cited ante, at 92-93, n. 3.
“The doctrine of stare decisis has a more limited application when the precedent rests on constitutional grounds, because ‘correction through legislative action is practically impossible.’ Burnet v. Coronado Oil & Gas Co., 285 U. S. 393, 407-408 (BrandEis, J., dissenting). See Mitchell v. W. T. Grant Co., 416 U. S. 600, 627 (Powell, J., concurring).” Thomas *105v. Washington Gas Light Co., 448 U. S. 261, 272-273, n. 18 (1980) (plurality opinion).
See also Edelman v. Jordan, 415 U. S. 651, 671 (1974); Boys Markets v. Retail Clerks, 398 U. S. 235, 259-260 (1970) (Black, J., dissenting); Swift & Co. v. Wickham, 382 U. S. 111, 133-134 (1965) (Douglas, J., dissenting).
The Internal Revenue Service’s Cumulative Bulletin explains the effect of an announcement of acquiescence:
“In order that taxpayers and the general public may be informed whether the Commissioner has acquiesced in a decision of the Tax Court of the United States, formerly known as the United States Board of Tax Appeals, disallowing a deficiency in tax determined by the Commissoner to be due, announcement will be made in the semimonthly Internal Revenue Bulletin at the earliest practicable date. Notice that the Commissioner has acquiesced or nonacquiesced in a decision of the Tax Court relates only to the issue or issues decided adversely to the Government. Decisions so acquiesced in should be relied upon by officers and employees of the Bureau of Internal Revenue as precedents in the disposition of other cases.” 1942-2 Cum. Bull, iv (emphasis added).