IV. Retroactivity We next turn to petitioner's concern that the temporary regulations would have an impermissible retroactive effect if we applied them in this case. Respondent attempts to defuse petitioner's concern by arguing that the temporary regulations "are not retroactive as applied in this case" but that, even if they were, they would be permissibly retroactive. Thus, two issues emerge: First, whether the temporary regulations would have a retroactive effect if applied in this case, and second, if so, whether the retroactive effect would be permissible. However, in the light of our holdings above regarding the regulations' effective date and their validity, we need not answer these questions to resolve respondent's motions in this case. We therefore leave them for another day. Conclusion In the light of the above holdings, we find it unnecessary to address petitioner's other concerns with respect to the temporary regulations. The Court has considered all of respondent's contentions, arguments, requests, and statements. To the extent not discussed herein, we conclude that they are meritless, moot, or irrelevant. To reflect the foregoing, Reviewed by the Court. An appropriate order will be issued. COLVIN, WELLS, VASQUEZ, GOEKE, KROUPA, and PARIS, JJ., agree with this majority opinion. 778 (quoting Natl. Cable & Telecomms. Association v. Brand X Internet Servs., 545 U.S. at 983). The Court of Appeals did not indicate definitively whether any such temporary regulations would actually trump the Supreme Court's prior judicial construction. This may flow from the possibly unresolved issue of whether legislative history should be considered when applying Chevron step one. Compare Natural Res. Def. Council v. U.S. EPA, supra at 603 (“An examination of the statutory language and its legislative history assists us in this inquiry [Chevron step one]".), with Schneider v. Chertoff, 450 F.3d 944, 955 n.15 (9th Cir. 2006) (“Although we cannot consider legislative history under the first prong of Chevron, *** we note that the Secretary's regulation subverts the very intent of the Nursing Relief Act."). In any event, we will not speculate as to the precise meaning of the Court of Appeals' statement, particularly when, as in this case, we are not bound by that court's caselaw because this case is not appealable, absent stipulation to the contrary, to that court. See Golsen v. Commissioner, 54 T.C. at 757. GUSTAFSON and MORRISON, JJ., did not participate in the consideration of this opinion. COHEN, J., concurring: I concur in the result in this case. I would reach the same result, however, on narrower grounds relating to motions to vacate and reconsider or untimely motions to amend pleadings. Moreover, I would adopt petitioner's distinction of Alioto v. Commissioner, T.C. Memo. 2008-185, emphasizing the difference between congressional action there and what occurred here. I would defer discussion of the difficult and divisive issues regarding retroactive regulations, temporary regulations promulgated without notice and an opportunity for comment, and the degree of deference to which these regulations and Treasury regulations generally are entitled. Many cases to be decided in the future, including those now on appeal, will necessarily present those issues. This petitioner should not bear the burden of relitigating this case on a playing field unilaterally redesigned by the adverse party after petitioner has prevailed at this level. GALE, THORNTON, and MARVEL, JJ., agree with this concurring opinion. HALPERN and HOLMES, JJ., concurring in the result only: I. Introduction Respondent asks that, "in the interests of justice", we vacate our order and decision so that we may reconsider our opinion "to correct a substantial error of law" resulting from the "unusual circumstance" of the Secretary's issuing temporary regulations ostensibly overruling the authority on which we relied 23 days earlier in deciding this case. 1 Understandably, petitioner cries foul, arguing first and foremost that respondent cannot meet the high standards established by this Court for granting either a motion to vacate, see Taylor v. Commissioner, T.C. Memo. 1987-403, or a 1 The temporary regulations in question (the temporary regulations) are secs. 301.6229(c)(2)— 1T and 301.6501(e)-1T, Temporary Proced. & Admin. Regs., 74 Fed. Reg. 49322 (Sept. 28, 2009). motion to reconsider, see Estate of Quick v. Commissioner, 110 T.C. 440, 441 (1998). The majority finds no reason to resolve the merits of that argument, however, because, it says, even if it were to deny the motions on that ground, respondent might appeal our decision and, "[b]y neglecting the temporary regulations at this time[,] we would not be protecting the integrity of the judicial system *** but merely failing to fully complete our work." Majority op. p. 217. The majority then proceeds to hold that the temporary regulations are both prospective (and therefore inapplicable to this case) and, because they are unambiguously in conflict with the statute, invalid. Principles of judicial restraint counsel against making unnecessarily broad pronouncements when a case can be fully resolved on a narrower ground. Cf. Greater New Orleans Broad. Association, Inc. v. United States, 527 U.S. 173, 184 (1999) (discussing constitutional interpretation). Moreover, by discrediting the substance of the temporary regulations themselves, the majority has assured petitioner a trip to a Court of Appeals that he might avoid were we simply to stamp the motions denied or to dispose of them on grounds particular to this case, as Judge Cohen suggests. 2 Since the majority has chosen to address the effective date of the temporary regulations and their substantive validity, we feel compelled to comment. We are persuaded by neither of the majority's analyses and would, before addressing any aspect of substantive validity, consider first the logically prior question of the procedural validity of the temporary regulations. With respect to that question, we believe that petitioner has the better argument. II. Applicability of the Temporary Regulations The majority concludes: "The plain meaning of the effective/applicability date provisions indicates that the temporary regulations do not apply to this case." Majority op. p. 218. In fact, the temporary regulations provide: "The rules of this section apply to taxable years with respect to which the applicable period for assessing tax did not expire before Sep 2 In its haste to protect the integrity of the judicial system and to fully complete its work, the majority "question[s]" petitioner's attempts to distinguish Alioto v. Commissioner, T.C. Memo. 2008-185, but it does not stop to explain or to resolve those questions. Majority op. p. tember 24, 2009." Secs. 301.6229(c)(2)–1T(b), 301.6501(e)— 1T(b), Temporary Proced. & Admin. Regs., 74 Fed. Reg. 49322, 49323 (Sept. 28, 2009). The relevant dates are as follows: Tax year Petition filed Temp. regs. effective date 1999 Sept. 15, 2000 Dec. 4, 2006 Sept. 1, 2009 Section 6229(a) provides that, except as otherwise provided in the section, the period of limitations for making assessments with respect to partnership items is 3 years. Section 6229(c)(2) substitutes 6 years for 3 years in the case of a substantial omission of income. The period for making assessments—whether 3 years or 6 years-is suspended by the mailing of an FPAA until our decision in the case becomes final (or, if no petition is filed, the period to petition expires) and for 1 year thereafter. See sec. 6229(d). Because of respondent's motion to vacate order and decision, our decision in this case has not yet become final. The majority claims: "The plain meaning of the temporary regulations' effective/applicability date provisions indicates that the temporary regulations do not apply to this case because the applicable period of limitations expired before September 24, 2009." Majority op. p. 220. According to respondent, the applicable period of limitations did not expire before September 24, 2009, because, as a result of the temporary regulations, "the applicable period for assessing tax” is the 6-year period prescribed by section 6229(c)(2), which 6year period had not run on September 14, 2006, when the FPAA was mailed. The filing of the petition then suspended the running of that 6-year period to and beyond September 24, 2009. The majority counters: "We concluded in our September 1, 2009, opinion [which antedates the September 24, 2009, temporary regulations] that the general 3-year limitations period of section 6501(a) was the applicable period for assessing tax in this case and that it had expired some time before September 14, 2006." Majority op. p. 218. It adds: "The plain meaning of the effective/applicability date provisions indicates that the temporary regulations do not apply to this case." Majority op. p. 218. Since the temporary regulations do not define the term "applicable period for assessing tax" (by stating whether the regulation itself is to be taken into account in determining the applicable period), the meaning of the term is less than plain, so it must be construed. What ground is there, then, for the majority to conclude that the effective date language of the temporary regulations precludes their application to this case? In other words, how can it construe the expression "the applicable period for assessing tax" to mean "the 3-year period for assessing tax"? Perhaps the majority has in mind section 7805(b), as applicable to the temporary regulations. 3 As so applicable, the section reads: SEC. 7805(b). RETROACTIVITY OF REGULATIONS OR RULINGS.-The Secretary may prescribe the extent, if any, to which any ruling or regulation, relating to the internal revenue laws, shall be applied without retroactive effect. [Sec. 7805(b) (pre-1996).] We have said: "Under section 7805(b) [pre-1996], there is a presumption that every regulation will operate retroactively, unless the Secretary specifies otherwise." UnionBanCal Corp. v. Commissioner, 113 T.C. 309, 327 (1999), affd. 305 F.3d 976 (9th Cir. 2002). Here, undoubtedly, the Secretary did specify something with respect to the retroactivity (applicability) of the temporary regulations; viz, the rules therein “apply to taxable years with respect to which the applicable period for assessing tax did not expire before September 24, 2009." Secs. 301.6229(c)(2)-1T(b), 301.6501(e)-1T(b), Temporary Proced. & Admin. Regs., supra. Perhaps the majority believes that the Secretary drafted the temporary regulations intending to limit retroactivity to taxable years for which the 3-year period of limitations had not expired on September 24, 2009, but he (unlike the majority) realizes that that meaning is less than plain and now has changed his mind and is taking advantage of his lack of clarity to pull a fast one. 3 In 1996, sec. 7805(b) was amended by the Taxpayer Bill of Rights 2, Pub. L. 104-168, sec. 1101(a), 110 Stat. 1468 (1996), to limit the retroactive application of Treasury tax regulations. The 1996 amendment is effective with respect to regulations that relate to statutory provisions enacted on or after July 30, 1996. See id. sec. 1101(b), 110 Stat. 1469. The parties seem to agree (and the majority does not dispute) that the 1996 amendment does not apply to the temporary regulations since the statutory provisions in question, secs. 6229(c)(2) and 6501(e)(1)(A), were enacted before that date. Sec. 301.6229(c)(2)-1T, Temporary Proced. & Admin. Regs., supra, was issued under the authority of both secs. 6230(k) and 7805, while sec. 301.6501(e)–1T, Temporary Proced. & Admin. Regs., supra, was issued solely under the authority of sec. 7805. T.D. 9466, 74 Fed. Reg. 49322. |