On
The
In its brief, the government summarizes its position as follows:
Petitioners contend (Pet. 17) that 26 U.S.C. 954(d)(2) is "conditioned on the promulgation of regulations" by the
The government's position is an interesting one. It seems to accept that a court is free to ignore regulations relied on by the public if the court determines that the government's position is supported by the statutory language and the statute is not entirely conditioned on the operation of a regulation. Additionally, the government believes here that
Perhaps sensing the difficulty in prevailing on this argument, the government (similar to what it did in the rehearing proceedings in the
In another attempt to discourage review, the government essentially argues that the substantive issue is an issue of first-and-last impression because the regulations at issue were amended for tax years subsequent to Whirlpool's. Again, this ignores the fact that Whirlpool involves important administrative law issues that will remain regardless of the amendment.
Finally, the government makes the valid point that no circuit split exists with respect to the lower court's decision. While this may be true with respect to Code Section 954(d)(2) and regulations promulgated thereunder, the Sixth Circuit's approach conflicts with approaches by other Courts of Appeals (and the
Whirlpool has submitted its reply in support of its petition for certiorari, addressing the government's position. Whirlpool's reply goes into more detail on our observations above, characterizing the government's response as resting "on a patently revisionist history of this case," misreading the statute and downplaying the importance of the case from an administrative law perspective.
Prior coverage of this case can be found below:
SCOTUS Requests Government Response to Whirlpool's Petition
SCOTUS to Consider Whirlpool's Petition for Certiorari in Subpart F Case
- Amici Support Whirlpool's Request for
Supreme Court Review
- Will the
Supreme Court Rule on Whirlpool's Subpart F Income Case?
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