WPC\R 2ABcR Z23|["m^36Gff%==\o3=33ffffffffff33oooQzKfzztzp=o=o\%ffQi\=bp:6m:p\ifQUGpbbbX=o=o=3============i:fffffQ\\\\K:K:K:K:p\\\\ppppbfi\\b\zifffQQQQi\\\\bbbbbbppK:K:K:K:fmz:z:z:z:z:pppp\\QQQtUtUtUtUzGzGzGppppppbpXpXpXiz:pQtUzGbbi\pNo3o\6QNNfff=7f=f=%GGf//\\pp%G=ooee3o<;o;rfolWSGrfffZAeAe8.888888888888f>fffff]````J>J>J>J>rffffrrrrxffoffxffofff]]]]o````ffffffrrJ>J>J>J>lox;x;x;x;x;rrrrffWWWoSoSoSoSxGxGxGrrrrrrxfoZoZoZox;rWoSxGxfxfofrNe.}S1SSS```==`9}}`9(PPS88SSrr(P9ee\\w.e77\\\wwweeeCe.wR)EreewwwwIeenR\\\wwwxio\eEfRfIfRxe|W87y\r\rxWlRx\\]\ceIfIs`Wx\rriIe77\``rigewiiiiiiiiiiiiiiiiiiiIIIIIIIeeeeeeeeeeeeeeeeeeee777777777777\\\\\\\````````````rrrrrrrrrrrrrrrrrrrrxfx8xs8s\"X^FJa3SS}FSFFFFofSS}3o}SOJO}otaxSSSFSS*SSSSSSSSSSOo}}}}fOfOfOfO}}}}}}}oooo}}}}fOfOfOfOOOOOO}}ooottttaaaxxxOota}NF}JokkTKSS3aaAA}}3aSF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS2)}!c(#"X^HJS<aa}FSFFFF}oaa}<a]XX}kaaSFSS*SSSSSSSSSS]o]o]o]o]o]o]o]o]XXXXX}}}}kkkX}kNF}J}}}\\VV<xx}SS}}<xVF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS"X^?Sf}}SSS}?S?F}}}}}}}}}}FFoSaSFSu}So}o}oS}}FF}F}}}}SaF}}}}ox2xS?SS*SSSSSSSSSS}FooooooooooSFSFSFSF}}}}}}}}}}o}}}}}}ooooooo}oooo}}}}}}}}SFSFSFSFa}FFFFF}}}}}}SSSaaaaFFF}}}}}}}ooo}F}SaF}}}}}NX?q}So}}}}}EN}K}K-oo}SS}}SoKF*RRdE|>gn|g|n|SR}{nnnRRnnnnnnnRRRRRRRRRRRRSS"m^*,:SS}z22K[*2**SSSSSSSSSS**[[[Collluldu}=Sudzudul_dzljj\2[2[KSSCVK2Q\/,Y/\KVSCE:\QuQQH2[2[2*222222222222V/lSlSlSlSlSwlClKlKlKlK=/=/=/=/z\uKuKuKuKz\z\z\z\jQlSuVuKuKjQuKdVlSlSlSlClClClCuVlKlKlKlKuQuQuQuQuQuQ}\}\=/=/=/=/SuYd/d/d/d/d/z\z\z\z\uKuK}lClClC_E_E_E_Ed:d:d:z\z\z\z\z\z\ujQ\H\H\HuVd/z\lC_Ed:jQjQuVuKz\N[*[K,C@@SSS2-}}S2ooS}2::S''KK\\:2[[RRk*[11RRRkskk[ZZ<[){kJ%>gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"X^?S}}SSS}?S?F}}}}}}}}}}SS}a}SFS}S}ooS}FSF}oaS}}}oc7cS?SS*SSSSSSSSSSF}}}}}oooooaFaFaFaF}}}}}}}}}}}}}oooooooo}}}}}}aFaFaFaF}FFFFF}}oooaaaaSSS}oooFoaS}}}NX?}S}}}}}}KS}K}KF}}}SS}}S}KF*RRdE|>gn|g|n|SR{nnnRRnnnnnnnRRRRRRRRRRRRSS27c) ca- c0 c'4"m^*2gwZZskkkkB{sssZZcJRRRkkkl_dRZ>\J\B\JlZoN21mRgR\lNaJlRsRSRYZB\BhVrNlRwgsg_BZ11RVVg_]Zk___________________BBBBBBBZZZZZZZZZZZZZZZZZZZZ111111111111RRRRRRRVVVVVVVVVVVVggggggggggggggggggggl\l2lhs2hR"m^)+9RRzx11IY)1))RRRRRRRRRR))YYYAljjjrjbrz>RRR1,zzR1llRz199R&&IIZZ91YYQQi)Y00QQQiqiiYXX;Y(yiH$<euXXqiiii@yqqqXXaHQQQiiij]bQX`A"m^)1;RRz}11IY)1)YRRRRRRRRRR))YYYAngjjrjbrz>RRR>7zzR1nnRz1)99I11IIZZ91YYQQi)Y00QQQiqiiYXX;Y(yiH$<euXXqiiii@yqqqXXaHQQQiiij]bQX P['CPdd:SHvX pTCdz'l80lX pTCxDS?3s\  PCPyDS??皝4  p(AC&pu![2*d[ P['CPiu![2*P[e xzCX&r!Y1)LY P['CP v)o=3no P['C&P )o=3PRoe xzC&X&3L? P['CP 3L? P['CP r!Y1)P,Ye xzCX )o=3PRoe xzC&X2'OcwGsJMLHL"m^3=Iff%==\o3=3offffffffff33oooQzKpzzz~~z=o=o\%gjjrjbrzBQ d   ( , , From this we ask whether the executor's right to allocate administrative expenses to the postmortem income of the marital bequest is a material limitation upon the spouse's right to income from the property, such that account must be taken of the effect. Because the executor's power is undeniably a limitation on the spouse's right to income, the case hinges on  J whether that limitation is material. Accord, post, at 7  J (Scalia, J., dissenting) ( The beginning of analysis ... is to determine what, in the context of 20.2056(b)!4(a), the word `material' means).  We can quibble over which definition of material" substantial or relevant"precedes the other in the  J dictionary, see ibid.; The American Heritage Dic tionary772 (2d ed. 1985) ( substantial precedes relevant), but this debate is beside the point. The Commissioner has already interpreted the language in 20.2056(b)!4(a). In Revenue Ruling 93!48, the Com/"  Ԯmissioner ruled that the marital deduction is not ordinarily reduced when an executor allocates interest payments on deferred federal estate taxes to the postmortem income of the spousal bequest. Rev. Rul. 93!48, 1993!2 Cum. Bul. 270 ( [T]he value of a residuary charitable [or marital] bequest is [not] reduced by the amount of [interest] expenses payable from the income  J of the residuary property). Justice Scalia contends that Revenue Ruling 93!48 should be disregarded because it was promulgated by the Commissioner only after her attempts to prevail on the contrary position in  JH federal court repeatedly failed. Post, at 9. To be sure, the Commissioner may not have wholeheartedly embraced Revenue Ruling 93!48, but the Ruling nevertheless issued and we may not totally ignore the plain language of a regulation or ruling because the entity  J promulgating it did not really want to have to adopt it.  JX See Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253!254 (1992) ( We have stated time and time again that courts must presume that a legislature says in a statute what it means and means in a statute what it  J says there); West Virginia Univ. Hospitals, Inc. v.  J Casey, 499 U.S. 83, 98 (1991) (rejecting argument that the congressional purpose in enacting [a statute] must prevail over the ordinary meaning of statutory terms).  It is, as an initial matter, difficult to reconcile the Commissioner's treatment of interest under Revenue Ruling 93!48 with her position in this case. For all intents and purposes, interest accruing on estate taxes is functionally indistinguishable from the administrative expenses at issue here. By definition, neither of these expenses can exist prior to the decedent's death; before that time, there is no estate to administer and no estate tax liability to defer. Yet both types of expenses are inevitable once the estate is open because it is virtually impossible to close an estate in a day so as to avoid the deferral of estate tax payments or the incursion of some`"   administration expenses. Although both can theoretically be avoided if an executor donates his time or pays up front what he estimates the estate tax to be, this will not often occur. Both types of expenses are, moreover, of uncertain amount on the date of death. Because these two types of expenses are so similar in relevant ways, in my view they should be treated the same under 20.2056(b)!4(a) and Ruling 93!48, despite the Commissioner's limitation on the applicability of Revenue Ruling 93!48 to interest on deferred estate taxes.  But more important, the Commissioner's treatment of interest on deferred estate taxes in Revenue Ruling  J 93!48 indicates her rejection of the notion that every financial burden on a marital bequest's postmortem income is a material limitation warranting a reduction in the marital deduction. That the Ruling purports to  JX apply not only to income but also to principal, and may therefore deviate from the accepted rule regarding  J payment of expenses from principal, see, supra, at 2, does not undercut the relevance of the Ruling's implica J tions as to income. Post, at 10 (Scalia, J., dissenting). Thus, some financial burdens on the spouse's right to postmortem income will reduce the marital deduction; others will not. The line between the two does not, as  J Justice Scalia contends, depend upon the relevance of the limitation on the spouse's right to income to the  J value of the marital bequest, post, at 7!8, since interest on deferred estate taxes surely reduces, and is therefore  Jx relevant to, the value of what passes. Ibid. (emphasis deleted). By virtue of Revenue Ruling 93!48, the Commissioner has instead created a quantitative rule for 20.2056(b)!4(a). That a limitation affects the marital deduction only upon reaching a certain quantum of substantiality is not a concept alien to the law of  J taxation; such rules are quite common. See, e.g., Rev. Rul. 75!298, 1975!2 Cum. Bul. 290 (exempting from` "   income tax the income of qualifying banks owned by foreign governments, as long as their participation in  J domestic commercial activity is de minimis); Rev. Rul.  J 90!60, 1990!2 Cum. Bul. 3 (establishing de minimis rule so that taxpayers who give up less than 33.3% of their partnership interest need not post a bond to enable them to defer payment of credit recapture taxes for lowincome housing).  The Commissioner's quantitative materiality rule isconsistent with the example set forth in 26 CFR 20.2056(b)!4(a) (1996): BQ pC   , , (  An example of a case in which [the material limitation] rule may be applied is a bequest of property in trust for the benefit of the decedent's spouse but the income from the property from the date of the decedent's death until distribution of the property to the trustee is to be used to pay expenses incurred in the administration of the estate.XBQ d   J  ( , , Even assuming that Justice Scalia is correct that the word may connotes possibility rather than permissibil J ity, post, at 10, the example still does not specify whether it applies when all the income, some of the income, or any of the income from the property ... is to be used to pay expenses incurred in the administration of the estate. Any of these constructions of the example's language is plausible, and the Commissioner's expressed preference for the second one is worthy of  Jo deference. National Muffler Dealers Assn., Inc. v. United  JG States, 440 U.S. 472, 476 (1979).  That said, the proper measure of materiality has yet to be decided by the Commissioner. The Tax Court below compared the actual amount spent on administration expenses to its estimate of the income to be generated by the marital bequest during the spouse's  JW lifetime. 101 T.C., at 325. One amicus suggests a comparison of the discounted present value of the/ "   projected income stream from the marital bequest when the actual administrative expenses are allocated to income with the projected income stream when the expenses are allocated to principal. App. to Brief  J` American College of Trust and Estate Counsel as Amicus  J8 Curiae 1!2. The plurality, drawing upon its valuation  J theory, supra, at 5, looks to whether the dateofdeath value of the expected future administration expenses chargeable to income ... [is] material as compared with the dateofdeath value of the expected future income.  Jp Ante, at 14. None of these tests specifies with any particularity when the threshold of materiality is crossed. Cf. 26 U.S.C. 2503(b) (setting $10,000 annual minimum before gift tax liability attaches). The proliferation of possible tests only underscores the need for the Commissioner's guidance. In its absence, the Tax Court's approach is as consistent with the Code as any of the others, and provides no basis for reversal.  J0  I share Justice Scalia's reluctance to find a $1.5 million diminution in postmortem income immaterial  J under any standard. Post, at 8. Were this Court considering the question of quantitative materiality in the first instance, I would be hard pressed not to find this amount material given the size of Mr. Hubert's estate. But the Tax Court in this case was effectively preempted from making such a finding by the Commissioner's litigation strategy. It appears from the record that the Commissioner elected to marshal all her  J resources behind the proposition that any diversion of postmortem income was material, and never presented any evidence or argued that $1.5 million was quantitatively material. See App. 58 (Stipulation of Agreed Issues) (setting forth Commissioner's argument); Brief for Respondent 47. Because she bore the burden of proving materiality (since her challenge to administrative expenses was omitted from the original Notice of Deficiency), Tax Court Rule 142(a), her failure of proof` "   left the Tax Court with little choice but to reach its carefully crafted conclusion that $1.5 million was not quantitatively material on the facts before [it]. 101 T.C., at 325. I would resist the temptation to correct the seemingly counterintuitive result in this case by protecting the Commissioner from her own litigation strategy, especially when she continues to adhere to that strategy and does not, even now, ask us to reconsider the Tax Court's finding on this issue.  This complex case has spawned four separate opinions from this Court. The question presented is simple and its answer should have been equally straightforward. Yet we are confronted with a maze of regulations and rulings that lead at times in opposite directions. There is no reason why this labyrinth should exist, especially when the Commissioner is empowered to promulgate new regulations and make the answer clear. Indeed, nothing prevents the Commissioner from announcing by regulation the very position she advances in this litigation. Until that time, however, the relevant sources point to a test of quantitative materiality, one that is not met by the unusual factual record in this case. I would, accordingly, affirm the judgment of the Tax Court.