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Swallows as it is: The Distortion of National Muffler

In Swallows Holding Ltd. v. Commissioner, a reviewed opinion in early 2006, the Tax Court invalidated a Treasury Department tax regulation involving return filing by certain foreign corporations. The Tax Court's decision is wrong because it misread the precedents on which it relied and misperceived the roles of Treasury and the courts in filling gaps Congress left in tax statutes. This article maintains that the Tax Court misapplied the standard on which it relied: the National Muffler line of cases on deference to tax rules and regulations. Another of the author's articles, "Swallows as It Might Have Been: Regulations Revising Case Law," maintains that the Tax Court failed to appreciate the teaching of the Supreme Court in the Chevron and Brand X cases. Thus, either on National Muffler grounds or on Chevron and Brand X grounds, the Swallows Holding decision should be reversed. [Subsequent to publication of this article, a panel of the Third Circuit did reverse Swallows Holding.]