FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TEXACO INC., 

No. 06-16098 Plaintiff-Appellee,

D.C. No.

v.  CV-04-00316-SBA

UNITED STATES OF AMERICA,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Northern District of California

Saundra B. Armstrong, District Judge, Presiding

Argued and Submitted

April 17, 2008—San Francisco, California

Filed June 13, 2008

Before: Procter Hug, Jr., Mary M. Schroeder, and

Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

6843
COUNSEL

Eileen J. O’Connor, Assistant Attorney General, Richard T.

Morrison, Deputy Assistant Attorney General, Nathan J.

Hochman (argued), Gilbert S. Rotherberg, Richard Farber,

and Judith A. Hagley, of Washington, D.C., for the defendantappellant. 

William L. Goldman (argued), Robin L. Greenhouse, and

Michael F. Kelleher of McDermott Will & Emery LLP of

Washington, D.C., and Joseph H. Selby of McDermott Will

& Emery LLP of Boston, Massachusetts, for the plaintiffappellee.

TEXACO INC. v. UNITED STATES 6845
OPINION

CALLAHAN, Circuit Judge: 

This appeal requires that we undertake the task of interpreting a provision of the Internal Revenue Code, 26 U.S.C.

§ 1341. In essence, this statute allows a taxpayer, who is

required to pay to a third party income on which it has already

paid income tax, credit for the tax it paid on that income. Subsection (b)(2), however, provides that this credit is not available “with respect to an item which is included in gross

income by reason of the sale [of inventory].” 26 U.S.C.

§ 1341(b)(2). 

Texaco Inc.1 sought a tax refund of $101,043,085 under 26

U.S.C. § 1341(a) because it was required to pay out pursuant

to a settlement agreement with the Department of Energy

sums that it had previously included in its gross income. The

government denied the refund claims on the ground that the

inventory exception in § 1341(b)(2) barred Texaco from using

§ 1341(a). Texaco brought suit challenging the denial. The

district court agreed with Texaco and ordered the government

to pay the refund. The government appeals and we reverse.

We hold that the language in § 1341(b)(2) plainly precludes

Texaco from using the computation of tax set forth in

§ 1341(a).

I. Background

Texaco was engaged in an integrated petroleum business.

Between 1973 and 1981, Texaco made certain sales of crude

petroleum and refined petroleum products at prices that

exceeded the price ceilings set by federal petroleum price regulations. Texaco included these overcharges as gross income

on its corporate tax returns for the years 1973 through 1981.

1On October 9, 2001, Texaco Inc. became a wholly-owned, indirect

subsidiary of ChevronTexaco Corporation. 

6846 TEXACO INC. v. UNITED STATES
The Department of Energy (DOE) took various administrative

actions against Texaco which eventually resulted in a consent

degree requiring Texaco to pay $1,250,000,000 plus interest.

Texaco made the payments and deducted the settlement

amount on its federal income tax returns for those years as

ordinary and necessary business expenses. 

In February 2001, Texaco filed Refund Claims for the years

1988, 1990, 1991, and 1992, claiming that the tax benefit of

the ordinary and necessary business expense deductions

should have been calculated in accordance with 26 U.S.C.

§ 1341(a). The government denied the Refund Claims on the

ground that § 1341(b)(2) rendered § 1341(a) inapplicable. 

In January 2004, Texaco filed a complaint against the

United States in the District Court for the Northern District of

California. On cross-motions for summary judgment, the district court determined that subsection (b)(2) did not preclude

Texaco from seeking tax treatment under § 1341(a), reasoning

that the statute was ambiguous and sources outside the text of

the statute supported Texaco’s argument that § 1341(b)(2)

only prohibited the use of § 1341(a) computation for “sales

returns, allowances and similar items.” 

Following the entry of a final judgment, the Government

filed a timely appeal. 

II. The Statutory Scheme

The Supreme Court observed in 1931, that “[a]ll the revenue acts which have been enacted since the adoption of the

Sixteenth Amendment have uniformly assessed the tax on the

basis of annual returns showing the net result of all the taxpayer’s transactions during a fixed accounting period, either

the calendar year, or, at the option of the taxpayer, the particular fiscal year which he may adopt.” Burnet v. Sanford &

Brooks Co., 282 U.S. 359, 363 (1931). Under the “claim of

right doctrine,” which follows from the annual accounting

TEXACO INC. v. UNITED STATES 6847
principle, a taxpayer who has received an item of income over

which he has full control must include that item in his income

in the year of receipt, even if his right to retain that item is

imperfect and he is later required to return part or all of that

item. See generally 2 Mertens, Law of Federal Income Taxation §§ 12A:119-132 (1996 & Supp. July 2006). 

Absent some statutory exception, such as § 1341(a), a taxpayer who was required in a later year to restore to a third

party income previously received is entitled to a deduction if

the repayment is deductible under some provision of the Internal Revenue Code. See United States v. Lewis, 340 U.S. 590,

591 (1951). In other words, a taxpayer may be able to reduce

his taxes for the year of repayment by deducting the repayment amount from his taxable income, but he has no recourse

against the increased taxes that he had paid in the year that he

received the money. The taxpayer might benefit if the tax savings from the deduction in the year of repayment is greater

than the increase in tax due to the inclusion of the amount in

the year that the amount was received. However, if the deduction in the year of repayment results in a savings of less than

the amount of increased tax paid as a result of the inclusion

of the amount repaid in income for the year in which the

amount was received, the taxpayer, absent some statutory provision, cannot recover the taxes he paid in the initial year on

income that he subsequently restored to a third party.2

Section 1341(a) provides some taxpayers with an option.3

2

It should be noted that the taxpayer’s “loss” is somewhat ameliorated

by the fact that the taxpayer has full use of the income between the time

it is received and the time it is repaid to a third party. 

3Section 1341(a) reads, in relevant part: 

(a) General rule.—If— 

(1) an item was included in gross income for a prior taxable year

(or years) because it appeared that the taxpayer had an unrestricted right to such item; 

6848 TEXACO INC. v. UNITED STATES
If the taxpayer satisfies the criteria set forth in subsections

(a)(1)-(3), as Texaco does, a taxpayer has a choice. It can still

take a deduction for the repayment in the year of repayment.

26 U.S.C. § 1341(a)(5)(A). However, it can alternatively calculate what its tax would have been in the initial year without

the income that was restored to a third party. If the difference

between the tax it actually paid and the tax it would have paid

if the restored amount had not been included in its gross

income is greater than the deduction it would receive by

claiming the deduction in the repayment year, it may use the

difference instead of the deduction. 26 U.S.C.

§ 1341(a)(5)(B), see Alcoa, Inc. v. United States, 509 F.3d

173, 177 (3rd Cir. 2007) (“By allowing the taxpayer the

choice between a simple deduction and a recalculation of the

prior year’s tax liability, section 1341 ensures that any change

in tax rates or in the taxpayer’s tax bracket is a tax neutral

event with respect to the disputed item of income.”). Here, the

parties agree that if § 1341(a) is applicable, then for the four

years in issue, Texaco, using the alternative provided by

§ 1341(a)(5)(B), is entitled to a refund of $101,043,085. 

(2) a deduction is allowable for the taxable year because it was

established after the close of such prior taxable year (or years)

that the taxpayer did not have an unrestricted right to such item

or to a portion of such item; and 

(3) the amount of such deduction exceeds $3,000, 

then the tax imposed by this chapter for the taxable year shall be

the lesser of the following: 

(4) the tax for the taxable year computed with such deduction; or

(5) an amount equal to— 

(A) the tax for the taxable year computed without such deduction, minus 

(B) the decrease in tax under this chapter (or the corresponding

provisions of prior revenue laws) for the prior taxable year (or

years) which would result solely from the exclusion of such item

(or portion thereof) from gross income for such prior taxable year

(or years). 

TEXACO INC. v. UNITED STATES 6849
The government, however, contends that Texaco is barred

from using § 1341(a) by § 1341(b)(2).4 The government’s

position is that § 1341(a) is not applicable to Texaco because

the first sentence of § 1341(b)(2) provides that “Subsection

(a) does not apply to any deduction allowable with respect to

an item which was included in gross income by reason of the

sale or other disposition of stock in trade of the taxpayer.”

Texaco concedes that “[d]uring the years 1973 through 1981,

all of Texaco’s sales of crude oil and petroleum products were

sales of inventory or property held by Texaco primarily for

sale to customers in the ordinary course of Texaco’s trade or

business.” Because the income in issue arose out of the sale

of inventory, the government asserts that Texaco is barred

from using § 1341(a) to compute its taxes. Texaco disagrees,

contending that §1341(b)(2) does not bar it from using

§ 1341(a). Thus, this litigation turns on the meaning and

scope of § 1341(b)(2).5

4This subsection reads: 

Subsection (a) does not apply to any deduction allowable with

respect to an item which was included in gross income by reason

of the sale or other disposition of stock in trade of the taxpayer

(or other property of a kind which would properly have been

included in the inventory of the taxpayer if on hand at the close

of the prior taxable year) or property held by the taxpayer primarily for sale to customers in the ordinary course of his trade or

business. This paragraph shall not apply if the deduction arises

out of refunds or repayments with respect to rates made by a regulated public utility (as defined in section 7701(a)(33) without

regard to the limitation contained in the last two sentences

thereof) if such refunds or repayments are required to be made by

the Government, political subdivision, agency, or instrumentality

referred to in such section, or by an order of a court, or are made

in settlement of litigation or under threat or imminence of litigation. 

5The interpretation of a statute such as 26 U.S.C. § 1341 is a question

of law, and accordingly, we review de novo the district court’s determination. See Estate of Heim v. Comm’r of Internal Revenue, 914 F.2d 1322,

1325 (9th Cir. 1990). 

6850 TEXACO INC. v. UNITED STATES
III. Interpreting Section 1341(b)(2)

The Supreme Court has directed that the first step in interpreting a statute “is to determine whether the language at

issue has a plain and unambiguous meaning with regard to the

particular dispute in the case.” Robinson v. Shell Oil Co., 519

U.S. 337, 340 (1997). “The inquiry ceases if the statutory language is unambiguous and the statutory scheme is coherent

and consistent.” Barnhart v. Sigmon Coal Co., Inc., 534 U.S.

438, 450 (2002) (internal citation omitted). The Supreme

Court has further noted that “[i]f a court, employing traditional tools of statutory construction, ascertains that Congress

had an intention on the precise question at issue, that intention

is the law and must be given effect.” Chevron U.S.A., Inc. v.

Natural Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984).

[1] The language of 26 U.S.C. § 1341(b)(2) is clear. The

statute provides that a “deduction” otherwise “allowable”

under subsection (a) is prohibited if the deduction was based

on “an item” included in gross income “by reason of” the sale

of inventory. Thus, the statute directs us to the basis of the

deduction allowable under subsection (a). The deduction

arises if a taxpayer included in its tax return income that it

subsequently had to pay to a third party. Subsection (b)(2)

asks what was the basis for the item included in gross income

that year. If the item was included in gross income because of

the sale of stock in trade (inventory), then the taxpayer is prohibited by subsection (b)(2) from using the deduction otherwise allowed by subsection (a). 

[2] The Federal Circuit agrees that this is the plain meaning

of subsection (b)(2). In analyzing the statute, the Federal Circuit parsed § 1341 into three phrases: “[A] any deduction

allowable [B] with respect to an item which was included in

gross income [C] because of the sale or other disposition of

. . . property such as inventory. Pennzoil-Quaker State Co. v.

United States, 511 F.3d 1365, 1372 (Fed. Cir. 2008). It then

wrote:

TEXACO INC. v. UNITED STATES 6851
The wording of the inventory exception is clear as a

grammatical matter. A modifying phrase attaches to

its closest referent; so phrase [C] (“because of the

sale . . . of . . . inventory”) would ordinarily modify

phrase [B] (“which was included in gross income”).

Accordingly, if the “item was included in gross

income for a prior taxable year” because of the sale

of inventory, then the inventory exception precludes

section 1341 relief. 26 U.S.C. § 1341(a)(1). 

Id. at 1373 (Fed. Cir. 2008) (alteration in original). 

Texaco, however, urges that there is a “syntactical”

ambiguity in subsection (b)(2), and that the phrase “by reason

of the sale or other disposition of [inventory]” modifies the

phrase “deduction allowable with respect to an item which

was included in gross income” in such a way that “the question that must be answered is whether the deduction in the

current year is allowable ‘by reason of the sale or other disposition of [inventory].’ ” It then defines “by reason of the sale

or other disposition of [inventory]” to be limited to “sales

returns, allowances, and similar items.” 

Even if such a construction were grammatically possible, it

would not be reasonable. First, subsection (a) clearly states

that its general rule applies when “an item was included in

gross income for a prior taxable year (or years) because it

appeared that the taxpayer had an unrestricted right to such

item.” 26 U.S.C. § 1341(a)(1) (emphasis added). Accordingly,

there is no reason to interpret “included in gross income” in

subsection (b)(2) as referring to anything other than the prior

taxable year or years. Moreover, the proposed interpretation

would eviscerate subsection (b)(2) because a subsection (a)

deduction is always based on calculations arising from a prior

tax year and not on whether an item was included in gross

income in the current year. 

6852 TEXACO INC. v. UNITED STATES
Second, there is nothing in the statute that limits the definition of “sale or other disposition of stock in trade” to “sales

returns, allowances, and similar items.” Texaco urges that

such a limitation arises from Treasury Regulation § 1.1341-

1(f).6 We, however, agree with the Federal Circuit that this

regulation does not limit subsection (b). The Federal Circuit

explained:

The Treasury Regulation, which recites the inventory exception and infers “therefore” that § 1341

provides no relief for transactions in inventory, is not

to the contrary. The word “therefore” means “as a

consequence [or] it must follow.” Bryan A. Garner,

The Elements of Legal Style 141 (1991). The Treasury Regulation can be made to say no more than

that “sales returns and allowances and similar items”

are examples of situations where the inventory

exception applies; they do not delimit the exception.

Mertens, a leading tax treatise, explains that the

inventory exception “is not limited to sales returns,

but [rather] the Regulations use this merely to provide an example of the inventory exception. For

example, amounts for which the taxpayer is liable

due to a patent infringement fall within this excep6Treasury Regulation § 1.1341-1(f) is entitled “Inventory items, stock in

trade, and property held primarily for sale in the ordinary course of trade

or business.” Subsection (1) reads: 

Except for amounts specified in subparagraphs (2) and (3) of this

paragraph, the provisions of section 1341 and this section do not

apply to deductions attributable to items which were included in

gross income by reason of the sale or other disposition of stock

in trade of the taxpayer (or other property of a kind which would

properly have been included in the inventory of the taxpayer if

on hand at the close of the prior taxable year) or property held by

the taxpayer primarily for sale to customers in the ordinary

course of the taxpayer’s trade or business. This section is, therefore, not applicable to sales returns, allowances, and similar

items. 

TEXACO INC. v. UNITED STATES 6853
tion if the infringement is related to the inventory

goods.” Mertens Law of Federal Income Taxation

§ 12A:130 (2007). 

Pennzoil-Quaker, 511 F.3d at 1373. 

Third, Texaco’s proposed interpretation of subsection (b)

would reduce the final sentence of the section to surplusage.

The Supreme Court counsels against adopting such a statutory

interpretation, stating:

It is “a cardinal principle of statutory construction”

that “a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or

insignificant.” Duncan v. Walker, 533 U.S. 167, 174,

. . . (2001) (internal quotation marks omitted); see

United States v. Menasche, 348 U.S. 528, 538-539,

. . . (1955) (“It is our duty ‘to give effect, if possible,

to every clause and word of a statute.’ ” (quoting

Montclair v. Ramsdell, 107 U.S. 147, 152, . . .

(1883))). “[W]ere we to adopt [Andrews’] construction of the statute,” the express exception would be

rendered “insignificant, if not wholly superfluous.”

Duncan, 533 U.S. at 174, . . . We are “reluctant to

treat statutory terms as surplusage in any setting,”

ibid. (internal alteration and quotation marks omitted), and we decline to do so here. 

TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001). 

The final sentence of subsection (b)(2) provides that the bar

to using a subsection (a) computation in the first sentence

does not apply “if the deduction arises out of refunds or

repayments made by a regulated public utility,” if required by

a government agency, a court, or “made in settlement of litigation or under threat or imminence of litigation.” Although

it may not be impossible for a public utility’s refund or repay6854 TEXACO INC. v. UNITED STATES
ment to be based on “sales returns, allowances, and similar

items,” it defies logic to believe that Congress in enacting the

final sentence of subsection (b)(2) was concerned with only

such a refund or repayment. Again, we agree with the Federal

Circuit when it reasons:

A “sales return” is defined as “merchandise given

back to the seller because of defects,” while a “sales

allowance” is defined as a “reduction in the selling

price of goods because of a particular problem (e.g.,

breakage, quality deficiency, incorrect quantity).”

Dictionary of Accounting Terms 387, 386 (3d ed.

2000). A public utility’s government- or courtordered rate refund is neither of those things. Quaker’s narrow interpretation of the inventory exception

would therefore render the public utility exception to

the inventory exception superfluous-an impermissible reading. 

Pennzoil-Quaker, 511 F.3d at 1374. 

[3] For the forgoing reasons we conclude that subsection

(b)(2) clearly provides that the deduction allowed by subsection (a) is not available with respect to an item which was

included in the gross income in a prior taxable year by reason

of the sale or other disposition of stock in trade or inventory.

In light of our conclusion that subsection (b)(2) is plain and

unambiguous, several of Texaco’s other arguments need not

detain us. Texaco argues that Congress’s intent in enacting

§ 1341 may be extracted from the legislative histories of

§ 1341 and former Internal Revenue Code § 462. Internal

Revenue Code of 1954, § 462(a), 68A Stat. 158-159 (repealed

by Act of June 15, 1955, ch. 143, §§ 1, 3, 69 Stat. 134, 135).

Despite the facts that the statutes covered different taxpayers,

that § 1341 makes no mention of § 462, and that § 462 was

retroactively repealed in 1955, Texaco argues that the “Committee Reports confirm Congress’s unmistakable intention

TEXACO INC. v. UNITED STATES 6855
that the exception in section 1341(b)(2) apply only to those

deductions that qualified for section 462 treatment.” Whatever

the merits of Texaco’s argument, it is insufficient to overcome

the plain meaning of the statute’s language. See BedRoc Ltd.,

LLC v. United States, 541 U.S. 176, 183 (2004) (stating that

the “preeminent canon of statutory interpretation requires us

to presume that [the] legislature says in a statute what it

means and means in a statute what it says there” and that “our

inquiry begins with the statutory text, and ends there as well

if the text is unambiguous”) (internal quotation marks and

citations omitted). 

Similarly, we are not free to act on Texaco’s assertion that

subsection (b) creates an inequity. Once Congress has spoken,

the court cannot revise a statute to promote a more equitable

consequence. See Badaracco v. Comm’r of Internal Revenue,

464 U.S. 386, 398 (1984) (“The relevant question is not

whether, as an abstract matter, the rule advocated by petitioners accords with good policy. The question we must consider

is whether the policy petitioners favor is that which Congress

effectuated by its enactment of [the statute]. Courts are not

authorized to rewrite a statute because they might deem its

effects susceptible of improvement.”); In re Kelly, 841 F.2d

908, 913 (9th Cir. 1988) (stating that “policy arguments are,

of course, beside the point once Congress has spoken.”)

IV. Deference to the agency’s position

Even if there were some ambiguity in § 1341(b), we would

be hard pressed not to defer to the agency’s interpretation of

the statute. In Morales v. Sociedad Espanola de Auxilio

Mutuo y Beneficencia, 524 F.3d 54 (1st Cir. 2008), the First

Circuit recently reiterated the controlling standard as follows:

If, however, the language admits of a possible

ambiguity and Congress has not spoken directly to

the issue, the court must look for guidance to any

relevant regulations promulgated by an agency

6856 TEXACO INC. v. UNITED STATES
charged with administering the statute. Chevron,

U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467

U.S. 837, 843 . . . (1984); Muñiz v. Sabol, 517 F.3d

29, 38 (1st Cir. 2008). 

In those circumstances, a court is bound to apply the

agency’s interpretation of the statute, as embodied in

a regulation, as long as it constitutes a permissible

construction of the statutory text. Chevron, 467 U.S.

at 843 . . . . Determining a regulation’s meaning

requires application of the same principles that

imbue exercises in statutory construction. See, e.g.,

Cumberland Coal Res., LP v. Fed. Mine Safety &

Health Rev. Comm’n, 515 F.3d 247, 254 (3d Cir.

2008); Sidell v. Comm’r, 225 F.3d 103, 110 (1st Cir.

2000). 

When the regulatory language remains ambiguous

even after the application of those principles, an

inquiring court must look beyond the letter of the

regulation and defer to an agency’s reasonable interpretation of the regulation. United States v. Lachman, 387 F.3d 42, 54 (1st Cir. 2004); see

Christensen v. Harris County, 529 U.S. 576, 588 . . .

(2000). 

Id. at 57. 

[4] Although Texaco derides Revenue Ruling 2004-17,

2004-1 C.B. 516, as an unreasoned afterthought and no more

than a belated attempt to reconcile the agency’s position with

Treasury Regulation § 1.1341-1(f),7 we note that Ruling 2004-

17 does include the statement: “Section 1341(b)(2) provides

that § 1341(a) does not apply to any deduction allowable with

respect to an item included in gross income by reason of the

7We have already rejected Texaco’s reading of Treasury Regulation

§ 1.1341-1(f), see supra.

TEXACO INC. v. UNITED STATES 6857
sale or other disposition of the taxpayer’s stock in trade (or

other property of a kind that would have been included in the

taxpayer’s inventory if on hand at the close of the prior taxable year) or property held by the taxpayer primarily for sale

to customers in the ordinary course of its trade or business.”

In other words, the Ruling includes the agency’s interpretation of the statute that it was entrusted by Congress to enforce,

and its interpretation of its own regulation. 

Texaco notes that Revenue Ruling 2004-17 issued on February 6, 2004, shortly after Texaco filed its complaint. Citing

Reynolds Metals Co. v. United States, 389 F. Supp. 2d 692,

703-04 (E.D. Va. 2005), Texaco argues that a Revenue Ruling

issued during the pendency of litigation has no power to persuade. This perspective, however, has yet to gain broad acceptance. See Alcoa, 509 F.3d at 183 n.9 (“Because we reach this

result without relying on Revenue Ruling 2004-17, which the

IRS issued while the Reynolds litigation was ongoing and

which addresses the precise issue presented both in Reynolds

and here, we do not decide what deference it should be

accorded.”). We recognize that the timing of a Revenue Ruling may be relevant to its power to persuade, but we do not

think that the timing of Revenue Ruling 2004-17 precludes us

from considering the ruling, particularly as the ruling was not

based on the facts in Texaco’s case. 

We have held that generally revenue rulings are entitled at

least to “Skidmore deference.” Omohundro v. United States,

300 F.3d 1065, 1067-1069 (9th Cir. 2002); but see Tualatin

Valley Builders Supply, Inc. v. United States, 522 F.3d 937,

948 (9th Cir. 2008) (Judge O’Scannlain specially concurring,

opining that a revenue procedure was entitled to Chevron

rather than Skidmore deference).8 The Supreme Court in Skid8The government also asserts that Revenue Ruling 2004-17 is entitled

to Chevron deference, not just Skidmore deference. Texaco strongly disagrees. Because resolution of this question is not necessary to our disposition of this appeal, we decline to address it. 

6858 TEXACO INC. v. UNITED STATES
more v. Swift Co., 323 U.S. 134, 140 (1944), explained that

agency rulings “while not controlling upon the courts by reason of their authority, do constitute a body of experience and

informed judgment to which courts and litigants may properly

resort for guidance.” 

[5] Here, Revenue Ruling 2004-17, along with the agency’s

constant position in this litigation as well as in the PennzoilQuaker litigation, reflect that the agency has consistently

interpreted subsection (b)(2) as prohibiting the application of

subsection (a) with respect to an item which was included in

the gross income in a prior taxable year by reason of the sale

of inventory. We have determined that this is the plain meaning of subsection (b)(2). It follows that even if such a reading

were not compelled, the agency’s adoption of such a reading

would be a reasonable interpretation of the statute and thus

entitled to deference. Chevron, 467 U.S. at 844 (noting that

even when the legislative delegation to an agency on a particular question is implicit rather than explicit, “a court may not

substitute its own construction of a statutory provision for a

reasonable interpretation made by the administrator of an

agency”).

V. Conclusion

[6] Although 26 U.S.C. § 1341(a) was designed to allow

certain taxpayers relief from having paid taxes on income it

subsequently is required to pay to a third party, see Alcoa, 509

F.3d at 177, subsection (b)(2) restricts the availability of a

§ 1341(a) computation. We read § 1341(b)(2) as plainly prohibiting the use of a § 1341(a) computation by an entity other

than a public utility with respect to any amount which was

included in its gross income in a prior taxable year by reason

of the sale or other disposition of stock in trade or inventory.

Our reading of the statute is compelled by its plain language,

its logic, its lack of any limitation on the definition of inventory, and the presence of the final sentence of subsection

(b)(2). Accordingly, the district court’s grant of summary

TEXACO INC. v. UNITED STATES 6859
judgment in favor of Texaco is VACATED and the case is

REMANDED to the district court for the entry of judgment

in favor of the government.9

9We note that the district court when ruling on the cross-motions for

summary judgment did not have the benefit of the Federal Circuit’s opinion in Pennzoil-Quaker, 511 F.3d 1365, or the government’s explicit argument concerning the second sentence in § 1341(b). 

6860 TEXACO INC. v. UNITED STATES