author:
Justice Stevens
      Justice White, Justice Powell,

text:
    CITY OF MESQUITE v. ALADDIN’S CASTLE, INC.
    No. 80-1577.
    Argued November 10, 1981
    Decided February 23, 1982

      Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, Marshall, Blackmun, Rehnquist, and O’Con-nor, JJ., joined. White, J., post, p. 296, and Powell, J., post, p. 297, filed opinions concurring in part and dissenting in part.

      Elland Archer argued the cause and filed briefs for appellant.

      Philip W. Tone argued the cause for appellee. With him on the brief were Louis P. Bickel, Thomas L. Case, Don R. Sampen, and Christopher L. Varner.

      Briefs of amici curiae urging affirmance were filed by Lawrence Gunnels, James A. Klenk, and Rufus King for the Amusement Device Manufacturers Association; and by Philip F. Herrick for the Amusement and Music Operators Association, Inc.

        Robert H. Bork and David E. Springer filed a brief for Atari, Inc., as amicus curiae.

   Justice Stevens

delivered the opinion of the Court.

The United States Court of Appeals for the Fifth Circuit declared unconstitutional two sections of a licensing ordinance governing coin-operated amusement establishments in the city of Mesquite, Texas. Section 6 of Ordinance 1353, which directs the Chief of Police to consider whether a license applicant has any “connections with criminal elements,” was held to be unconstitutionally vague. Section 5, which prohibits a licensee from allowing children under 17 years of age to operate the amusement devices unless accompanied by a parent or legal guardian, was held to be without a rational basis. The first holding rests solely on the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Court of Appeals stated that its second holding rested on two provisions of the Texas Constitution as well as the Fourteenth Amendment to the Federal Constitution. Because Congress has limited our jurisdiction to review questions of state law, and because there is ambiguity in the Court of Appeals’ second holding, we conclude that a remand for clarification of that holding is necessary. There is, however, no impediment to our review of the first holding.

On April 5, 1976, to accommodate the proposal of Aladdin’s Castle, Inc. (Aladdin), to open an amusement center in a shopping mall, the city exempted from the prohibition against operation of amusement devices by unattended children certain amusement centers, the features of which were defined in terms of Aladdin’s rules, as long as children under the age of seven were accompanied by an adult. Thereafter, Aladdin entered into a long-term lease and made other arrangements to open a center in the mall. In August, however, its application for a license was refused because the Chief of Police had concluded that Aladdin’s parent corporation was connected with criminal elements. Aladdin then brought suit in a Texas state court and obtained an injunction requiring the city to issue it a license forthwith. The Texas court found that neither Aladdin nor its parent corporation had any connection with criminal elements and that#he vagueness in the ordinance contravened both the Texas and the Federal Constitutions.

On February 7, 1977, less than a month after the city had complied with the state-court injunction by issuing the license to Aladdin, the city adopted a new ordinance repealing Aladdin’s exemption, thereby reinstating the 17-year age requirement, and defining the term “connections with criminal elements” in some detail. Aladdin then commenced this action in the United States District Court for the Northern District of Texas, praying for an injunction against enforcement of the new ordinance. After a trial, the District Court held that the language “connections with criminal elements,” even as defined, was unconstitutionally vague, but the District Court upheld the age restriction in the ordinance. As already noted, the Court of Appeals affirmed the former holding and reversed the latter.

Invoking our appellate jurisdiction under 28 U. S. C. § 1254(2), the city now asks us to reverse the judgment of the Court of Appeals. After we noted probable jurisdiction, 451 U. S. 981, Aladdin advised us that the ordinance reviewed by the Court of Appeals had been further amended in December 1977 by eliminating the phrase “connections with criminal elements.” The age restriction, however, was retained.

I

A question of mootness is raised by the revision of the ordinance that became effective while the case was pending in the Court of Appeals. When that court decided that the term “connections with criminal elements” was unconstitutionally vague, that language was no longer a part of the ordinance. Arguably, if the court had been fully advised, it would have regarded the vagueness issue as moot. It is clear to us, however, that it was under no duty to do so.

It is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Such abandonment is an important factor bearing on the question whether a court should exercise its power to enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the existence of judicial power. In this case the city’s repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court’s judgment were vacated. The city followed that course with respect to the age restriction, which was first reduced for Aladdin from 17 to 7 and then, in obvious response to the state court’s judgment, the exemption was eliminated. There is no certainty that a similar course would not be pursued if its most recent amendment were effective to defeat federal jurisdiction. We therefore must confront the merits of the vagueness holding.

“It is a basic principle of due process that an enactment is void for vagueness if its prohibitions are not clearly defined.” Grayned v. City of Rockford, 408 U. S. 104, 108 (emphasis added). We may assume that the definition of “connections with criminal elements” in the city’s ordinance is so vague that a defendant could not be convicted of the offense of having such a connection; we may even assume, without deciding, that such a standard is also too vague to support the denial of an application for a license to operate an amusement center. These assumptions are not sufficient, however, to support a holding that this ordinance is invalid.

After receiving recommendations from the Chief of Police, the Chief Building Inspector, and the City Planner, the City Manager decides whether to approve the application for a license; if he disapproves, he must note his reasons in writing. The applicant may appeal to the City Council. If the City Manager disapproved the application because of the Chief of Police’s adverse recommendation as to the applicant’s character, then the applicant must show to the City Council that “he or it is of good character as a law abiding citizen,” which is defined in the ordinance to “mean substantially that standard employed by the Supreme Court of the State of Texas in the licensing of attorneys as set forth in [the Texas statutes].” § 9 of Ordinance 1353, App. to Juris. Statement 13. An applicant may further appeal to the state district court. It is clear from this summary that the phrase “connections with criminal elements,” as used in this ordinance, is not the standard for approval or disapproval of the application.

The applicant’s possible connection with criminal elements is merely a subject that the ordinance directs the Chief of Police to investigate before he makes a recommendation to the City Manager either to grant or to deny a pending application. The Federal Constitution does not preclude a city from giving vague or ambiguous directions to officials who are authorized to make investigations and recommendations. There would be no constitutional objection to an ordinance that merely required an administrative official to review “all relevant information” or “to make such investigation as he deems appropriate” before formulating a recommendation. The judgment of the Court of Appeals was therefore incorrect insofar as it held that the directive to the Chief of Police is unconstitutionally vague.

II

The Court of Appeals stated that its conclusion that the age requirement in the ordinance is invalid rested on its interpretation of the Texas Constitution as well as the Federal Constitution:

“We hold that the seventeen year old age requirement violates both the United States and Texas constitutional guarantees of due process of law, and that the application of this age requirement to coin-operated amusement centers violates the federal and Texas constitutional guarantees of equal protection of the law.” 630 F. 2d 1029, 1038-1039 (1980) (footnotes omitted).

In the omitted footnotes the court quoted two provisions of the Texas Constitution that are similar, but by no means identical, to parts of the Federal Constitution.

Because our jurisdiction of this appeal is based on 28 U. S. C. §1254(2), we are precluded from reviewing the Court of Appeals’ interpretation of the Texas Constitution. For the federal statute provides:

“Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
“(2) By appeal by a party relying on a State statute held by a court of appeals to be invalid as repugnant to the Constitution, treaties or laws of the United States, but such appeal shall preclude review by writ of certio-rari at the instance of such appellant, and the review on appeal shall be restricted to the Federal questions presented . . . .”

If the Texas Constitution provides an independent ground for the Court of Appeals’ judgment, our possible disagreement with its exposition of federal law would not provide a sufficient basis for reversing its judgment. If that be so, we should simply dismiss the appeal insofar as the city seeks review of the invalidation of the age requirement. Cf. United States v. Hastings, 296 U. S. 188, 193.

The city contends, however, that the Court of Appeals did not place independent reliance on Texas law but merely treated the Texas constitutional protections as congruent with the corresponding federal provisions. Under this reading of the Court of Appeals’ opinion, our correction of any federal error automatically would result in a revision of the Court of Appeals’ interpretation of the Texas Constitution. Instead of providing independent support for the judgment below, the Texas law, as understood by the Court of Appeals, would be dependent on our reading of federal law. Although the city’s contention derives support from the Court of Appeals’ greater reliance on federal precedents than on Texas cases, we nevertheless decline, for the reasons that follow, to decide the federal constitutional question now.

It is first noteworthy that the language of the Texas constitutional provision is different from, and arguably significantly broader than, the language of the corresponding federal provisions. As a number of recent State Supreme Court decisions demonstrate, a state court is entirely free to read its own State’s constitution more broadly than this Court reads the Federal Constitution, or to reject the mode of analysis used by this Court in favor of a different analysis of its corresponding constitutional guarantee. See generally Brennan, State Constitutions and the Protection of Individual Rights, 90 Harv. L. Rev. 489 (1977), and cases cited therein. Because learned members of the Texas Bar sit on the Court of Appeals for the Fifth Circuit, and because that court confronts questions of Texas law in the regular course of its judicial business, that court is in a better position than are we to recognize any special nuances of state law. The fact that the Court of Appeals cited only four Texas cases is an insufficient basis for concluding that it did not make an independent analysis of Texas law.

Second, it is important to take note of the Court of Appeals’ interpretation of the Texas “requirement of legislative rationality.” That interpretation seems to adopt a standard requiring that a legislative classification rests “ ‘ “upon some ground of difference having a fair and substantial relation to the object of the legislation . . . 630 F. 2d, at 1039. This formulation is derived from this Court’s opinion in F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415. But it is unclear whether this Court would apply the Royster Guano standard to the present case. See United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166; Craig v. Boren, 429 U. S. 190. Therefore, it is surely not evident that the Texas standard and the federal standard are congruent.

Finally, and of greater importance, is this Court’s policy of avoiding the unnecessary adjudication of federal constitutional questions. As we recently have noted, see Minnick v. California Dept. of Corrections, 452 U. S. 105, this self-imposed limitation on the exercise of this Court’s jurisdiction has an importance to the institution that transcends the significance of particular controversies. No reason for hasty decision of the constitutional question presented by this case has been advanced. If Texas law provides independent support for the Court of Appeals’ judgment, there is no need for decision of the federal issue. On the other hand, if the city is correct in suggesting that the Court of Appeals’ interpretation of state law is dependent on its federal analysis, that court can so advise us and we can then discharge our responsibilities free of concern that we may be unnecessarily reaching out to decide a novel constitutional question.

The judgment of the Court of Appeals is reversed in part, and the case is remanded for further proceedings consistent with this opinion.

It is so ordered.

Justice White,

concurring in part and dissenting in part.

I concur in the Court’s holding that Mesquite’s ordinance directing the Chief of Police to consider whether a license applicant has any “connections with criminal elements” is not void for vagueness.

Like Justice Powell, however, I dissent from the Court’s remand of the challenge to the age requirements in §5 of the Mesquite ordinance. The sentiment to avoid unnecessary constitutional decisions is wise, but there is no reason in this case to suspect that the Fifth Circuit’s standard for evaluating appellee’s due process and equal protection claims under the Texas Constitution differed in any respect from federal constitutional standards. I agree with Justice Powell that “the inclusion of three cursory state-law citations in a full discussion of federal law by a federal court is neither a reference to nor an adoption of an independent state ground. ” Post, at 299-300 (concurring in part and dissenting in part).

I refrain from joining Justice Powell’s detailed discussion in support of this position only because I would prefer not to engage in debate over the present health of “the Roys- ter Guano standard.” As I understand it, and as expressed in the opinion of the Court, ante, at 292 and 294, the rationale for inquiring into the presence of independent and adequate state grounds is to avoid an unnecessary “abstract opinion,” United States v. Hastings, 296 U. S. 188, 193 (1935), and to refrain from “unnecessary adjudication of federal constitutional questions.” Ante, at 294. This is the sole justification for remanding the case to the Court of Appeals. To justify that disposition, however, the Court finds it necessary to speculate as to whether a formulation of the rational-basis test initially stated in F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920), and reiterated in Reed v. Reed, 404 U. S. 71, 76 (1971), remains good law in light of more recent decisions. Ante, at 294. Justice Powell, in response, declares that “[t]his Court has never rejected either Royster Guano or Reed v. Reed.” Post, at 301, n. 6.

I fear that we have lost sight of the fact that our reason for pursuing this inquiry is to avoid rendering advisory opinions on federal constitutional law. It is ironic that in seeking to skirt a relatively narrow issue of whether the Mesquite age requirement is constitutional, an issue decided by the Court of Appeals and fully briefed, the Court has instead entered into highly abstract, totally advisory, speculation as to the continuing validity of one of our earlier statements on a matter of no small constitutional importance. If it is necessary to interpret a case twice removed and totally unrelated to the matter before us in order to justify a remand to the Court of Appeals, I would think it clear that no independent nonfed-eral basis for the decision is present. Delaware v. Prouse, 440 U. S. 648, 652 (1979).

Justice Powell,

concurring in part and dissenting in part.

I concur in the Court’s holding that Mesquite Ordinance 1353, §6, is not void for vagueness. I dissent, however, from the Court’s remand of the challenge to § 5.

I

The jurisdictional basis for the Court’s review of this case is 28 U. S. C. § 1254(2), which provides for mandatory Supreme Court review of federal appellate decisions overturning state statutes on federal constitutional grounds. Rather than exercising this jurisdiction, the Court remands the case to the Court of Appeals to clarify whether its decision is based on Texas law. In the past, the Court has not automatically required clarification when the record reveals that the lower court’s decisional basis is federal law. In this case, the opinion of the Court of Appeals contains no analysis of state law independent of its clear application of federal law. In my view there is no justification for a remand.

The city of Mesquite, Tex., adopted an ordinance stating that owners of coin-operated pinball machines should not allow their operation by youths under the age of 17 years. In the decision below, the Court of Appeals held that this ordinance violated equal protection and due process as well as First Amendment rights of free speech and association. The. court’s opinion referred to the Texas Constitution’s Due Process and Equal Protection Clauses, and quoted the relevant Texas constitutional provisions in the margin. The court then, at some length, applied the Fourteenth Amendment’s rational-relationship test to the Mesquite ordinance, citing, quoting, and discussing a total of 18 federal cases in this analysis. In the two initial paragraphs defining the broad principles applied in that analysis, the court cited two Texas cases and quoted briefly from another. 630 F. 2d 1029, 1035 (CA5 1980).

These Texas cases do not suggest an adequate and independent state ground for overruling the Mesquite ordinance. In the quoted case, the Texas court was describing federal, not Texas, law. Texas Woman’s University v. Chayklintaste, 530 S. W. 2d 927, 928 (Tex. 1975) (citing Reed v. Reed, 404 U. S. 71, 76 (1971)). Of the two other Texas cases cited, one involves an unsuccessful challenge to a zoning ordinance, and in it the Supreme Court of Texas applied the rule that a challenger to a zoning ordinance bears a heavy burden of showing that the exercise of police power is not lawful. City of University Park v. Benners, 485 S. W. 2d 773, 778-779 (1972). This case actually supports the validity of the Mesquite ordinance under Texas law.

In the other case, Falfurrias Creamery Co. v. City of Laredo, 276 S. W. 2d 351 (Tex. Civ. App. 1955), the State had established an inspection program for dairies. One municipality then passed an ordinance under which milk could be sold within its borders only if inspected by a local inspector. The Texas Court of Civil Appeals concluded that this requirement was arbitrary, since the local inspector could easily determine whether other inspectors were “[making] inspections] in accordance with the standard ordinance contemplated by the State law.” Id., at 355. This single case dealing with a dairy-inspection requirement designed to favor local dairies cannot be the basis for a serious allegation that Texas law would not allow Mesquite to exercise its police power by keeping youths out of pinball parlors.

On the basis of an inference as weak as that afforded by Falfurrias Creamery, I would not remand to any court, state or federal. But even if the cited case law provided some support for appellee’s challenge, the inclusion of three cursory state-law citations in a full discussion of federal law by a federal court is neither a reference to nor an adoption of an independent state ground. The Court's view allows federal courts overruling state statutes to avoid appellate review here simply by adding citations to state cases when applying federal law.

Nor is the Court’s rigid approach today required by earlier decisions. In Konigsberg v. State Bar of California, 353 U. S. 252, 256-258 (1957), for example, California argued that the California Supreme Court’s order dismissing the petitioner’s prayer for relief was based on an independent and adequate state ground: the requirements of a state procedural rule. The Court nevetheless proceeded to the merits of the federal question without remanding for clarification of the dismissal order’s basis. This Court found the proffered sources of the alleged state procedural rule unconvincing and “concluded] that the constitutional issues are before us and we must consider them.” Id., at 258 (footnote omitted).

HH

The Court gives three reasons for remanding. First, it observes that the language of the State Constitution, quoted in n. 2, supra, differs from that in the Federal Constitution and Texas may afford broader protection to individual rights than does the Federal Government. The relevant question is not, however, whether state law could be, or even is, different from federal law, but whether the Court of Appeals decided the case before it on state or federal grounds. In deciding this question, the citation of only three state cases is not, of course, determinative. Here, however, the Court of Appeals failed to discuss, explain, describe, or even state Texas law despite extensive discussion of federal law and cases.

The Court’s second point is at least imaginative. It focuses on one sentence from Reed v. Reed, 404 U. S., at 76, quoted in the Texas case of Texas Woman’s University v. Chayklintaste, 530 S. W. 2d, at 928, ante, at 294, and n. 17. That sentence reiterated a formulation of rational-basis analysis that was stated in F. S. Royster Guano Co. v. Virginia, 253 U. S. 412, 415 (1920). The Court today then implies that “the Royster Guano standard” may no longer be good law, citing United States Railroad Retirement Bd. v. Fritz, 449 U. S. 166 (1980). From this implication, the Court further infers that “the Texas standard and the federal standard” may not be congruent. The best answer to this speculative syllogism is found in the discussion of rational-basis analysis by the Court of Appeals. In an Appendix hereto I include the three paragraphs of the opinion that discuss the rational-relationship standard of review. It will be noted that nine United States Supreme Court cases were cited. Although three Texas cases were cited also, there is not the slightest indication that the Court of Appeals was distinguishing between federal and state law. Moreover, in the subsequent pages applying rational-relationship review, the court did not cite or discuss a single Texas case or any aspect of Texas law, though 11 federal cases were cited and discussed. 630 F. 2d, at 1039-1040 (not included in Appendix).

Finally, the Court relies on our traditional reluctance to decide a constitutional question unnecessarily. But we noted jurisdiction to consider the validity of the Mesquite ordinance, and this question is squarely presented. As a general matter, the Court should avoid unnecessary remands; this is particularly true when the Court’s mandatory jurisdiction has been invoked under § 1254(2). Neither the Court of Appeals nor appellee has presented any substantial reason for thinking that the Mesquite ordinance is invalid under Texas law independently of federal law that clearly was the basis for the decision below. In these circumstances, we have a duty to decide the substantive questions presented.

APPENDIX TO OPINION OF JUSTICE POWELL

“1. Rational Basis

“Assuming that the rational basis test is the appropriate standard of review, we conclude that no such rationality supports ordinance No. 1353. The test requires that legislative action be rationally related to the accomplishment of a legitimate state purpose. First, the challenged legislation must have a legitimate public purpose based on promotion of the public welfare, health or safety. See, e. g., Rinaldi v. Yeager, 384 U. S. 305, 309-10. . . (1966); Falfurrias Creamery Co. v. City of Laredo, 276 S. W. 2d 351 (Tex. Civ. App. 1955, writ ref'd n.r.e.). Second, the act taken must bear a rational relation to the end it seeks to further. See e. g., Griswold v. Connecticut, 381 U. S. at 505-507 . . . (White, J., concurring); Schware v. Board of Bar Examiners, 353 U. S. 232, 239 . . . (1957); City of University Park v. Benners, 485 S. W. 2d 773, 778-79 (Tex. 1972), appeal dismissed 411 U. S. 901.. . (1973).

“The requirement of legislative rationality in the service of legitimate purposes protects individuals and their liberties from official arbitrariness or unthinking prejudice. As one commentator noted, irrationality at least means ‘patently useless in the service of any goal apart from whim or favoritism.’ Michelman, Politics and Values or What’s Really Wrong with Rationality Review? 13 Creighton Law Review 487, 499 (1979). The test requires that legislation constitute a means that is ‘reasonable, not arbitrary and rests “upon some ground of difference having a fair and substantial relation to the object of the legislation . . . ” ’ Texas Woman’s University v. Chayklintaste, 530 S. W. 2d 927, 928 (Tex. 1979), citing Reed v. Reed, 404 U. S. 71, 76 . . . (1971). Accord, United States Department of Agriculture v. Moreno, 413 U. S. 528 . . . (1973); James v. Strange, 407 U. S. 128 . . . (1972); Jackson v. Indiana, 406 U. S. 715 . . . (1972); Stanley v. Illinois, 405 U. S. 645 . . . (1972); Eisenstadt v. Baird, 405 U. S. 438 . . . (1972).

“Examination of ordinance No. 1353 reveals two stated purposes. First, the ordinance seeks to prevent truancy. Second, it seeks to keep minors from being exposed to people ‘who would promote gambling, sale of narcotics and other unlawful activities.’ We conclude that the seventeen year old age requirement in no way rationally furthers these interests in regulating the associational activity of Mesquite’s young citizens, even making the assumption that both of these goals are legitimate.” 630 F. 2d, at 1039.

       630 F. 2d 1029 (1980).

       Section 6 of Ordinance 1353 of the Code of the city of Mesquite provided in pertinent part:
      “Any person desiring to obtain a license for a coin-operated amusement establishment shall apply to the City Secretary by original and five (5) copies, one of which shall be routed to the City Manager, Chief of Police, Chief Building Inspector and City Planner, for review.
      “Upon approval by each of the parties and payment of the license fee, the City Secretary shall issue a license for such establishment, which shall be valid for one (1) year and shall be non-transferable.
      “The Chief of Police shall make his recommendation based upon his investigation of the applicant’s character and conduct as a law abiding person and shall consider past operations, if any, convictions of felonies and crimes involving moral turpitude and connections with criminal elements, taking into consideration the attraction by such establishments of those of tender years.
      “The Chief Building Inspector and City Planner shall determine compliance with applicable building and zoning ordinances of the City.
      “When the City Manager has received the recommendations from the Chief of Police, Chief Building Inspector and City Planner, he shall review such application together with such recommendations as may be furnished and shall approve such application or disapprove same with written notation of his reasons for disapproval.
      “Upon disapproval, the applicant may make such corrections as noted and request approval, request withdrawal and refund of license fee, or give notice of appeal from the City Manager’s decision.
      “In the event of appeal from the City Manager’s decision the applicant shall give written notice of his intention to appeal within ten (10) days of notice of the City Manager’s decision. Such appeal shall be heard by the City Council within thirty (30) days from date of such notice unless a later date is agreed upon by applicant.
      “Upon appeal to the City Council of the City Manager’s decision based upon an adverse recommendation by the Chief of Police as to applicant’s character, the applicant shall have the same burden as prescribed in Article 305, V. A. C. S. to show to the Council that he or it is of good character as a law abiding citizen to such extent that a license should be issued.

        “Upon hearing the Council may reverse the decision of the City Manager in whole or in part or may affirm such decision.
      “An applicant may appeal such decision to the District Court within thirty (30) days but such appeal shall be upon the substantial evidence rule.
      “For violation of any of the requirements of this ordinance the City Manager may upon three (3) days notice of Licensee revoke the license granted hereunder. The same rights of appeal shall exist upon revocation as upon disapproval of the original application.” App. to Juris. Statement 9-10.

       Section 5 provides:
      “It shall be unlawful for any owner, operator or displayer of coin-operated amusement machines to allow any person under the age of seventeen (17) years to play or operate a coin-operated amusement machine unless such minor is accompanied by a parent or legal guardian.” Id., at 8.

       See Ordinance 1310.

       The judgment of the trial court was affirmed by the Texas Court of Civil Appeals, 559 S. W. 2d 92 (1977), and the Texas Supreme Court refused an application for a writ of error, 570 S. W. 2d 377 (1978), finding no reversible error in the conclusion that the denial of the license was not supported by substantial evidence, but declining to reach the vagueness question.

       Section 9 of Ordinance 1353 defined terms used in § 6 of the ordinance (quoted in n. 2, supra), which had been reenacted without change. Section 9 provided in pertinent part:

        “Connection With Criminal Elements is defined as that state of affairs wherein an applicant, or an officer of, principal stockholder of, person having a substantial interest in or management responsibility for, a corporation or other organization wherein such organization is the applicant, directly or as parent, subsidiary or affiliate, has such association, acquaintance, or business association with parties having been convicted of a felony or crime involving moral turpitude or are otherwise involved in unlawful activities, whether convicted or not, to the extent that the fencing of stolen merchandise or illegally obtained funds, the procuring of prostitutes, the transfer or sale of narcotics or illegal substances is made more feasible or likely or the protection of those of tender years from such unwholesome influences are rendered more difficult.
      “A determination by the United States Department of Justice that a party is a member of the ‘mafia’ or ‘Cosa Nostro’ family or that such party is engaged in or affiliated with a nationwide crime organization, whether formally or informally, shall be prima facia evidence, so far as the issuance of a license hereunder, that such person has ‘connections with criminal elements’ and constitute, within the meaning of this ordinance, ‘criminal elements’.” App. to Juris. Statement 12-13.

       434 F. Supp. 473 (1977), aff d in part, rev’d and remanded in part, 630 F. 2d 1029 (1980).

       See Ordinance 1410, App. to Brief for Appellee Al-All.

       If it becomes apparent that a case has become moot while an appeal is pending, the judgment below normally is vacated with directions to dismiss the complaint. See United States v. Munsingwear, Inc., 340 U. S. 36.

       "The test for mootness in cases such as this is a stringent one. Mere voluntary cessation of allegedly illegal conduct does not moot a case; if it did, the courts would be compelled to leave ‘[t]he defendant. . . free to return to his old ways.’ United States v. W. T. Grant Co., 345 U. S. 629, 632 (1953); see, e. g., United States v. Trans-Missouri Freight Assn., 166 U. S. 290 (1897). A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur. ... Of course it is still open to appellees to show, on remand, that the likelihood of further violations is sufficiently remote to make injunctive relief unnecessary. [345 U. S.] at 633-636. This is a matter for the trial judge. But this case is not technically moot, an appeal has been properly taken, and we have no choice but to decide it.” United States v. Concentrated Phosphate Export Assn., 393 U. S. 199, 203-204.

       Indeed, the city has announced just such an intention. See Tr. of Oral Arg. 18-20.

       The Court of Appeals summarized the relevant authorities as follows:
      “A law is void for vagueness if persons ‘of common intelligence must necessarily guess at its meaning and differ as to its application . . . Smith v. Goguen, 415 U. S. 566, 572 n. 8, quoting Connally v. General Construction Co., 269 U. S. 385, 391. See generally Note, The Void-for-Vagueness Doctrine in the Supreme Court, 109 U. Pa. L. Rev. 67 (1960). The offense to due process lies in both the nature and consequences of vagueness. First, vague laws do not give individuals fair notice of the conduct proscribed. Papachristou v. City of Jacksonville, 405 U. S. 156, 162. Accord Grayned v. City of Rockford, 408 U. S. 104, 108 & n. 3. Second, vague laws do not limit the exercise of discretion by law enforcement officials; thus they engender the possiblity of arbitrary and discriminatory enforcement. Grayned v. City of Rockford, 408 U. S. at 108-09 & n. 4; Papachristou v. City of Jacksonville, 405 U. S. at 168-70. Third, vague laws defeat the intrinsic promise of, and frustrate the essence of, a constitutional regime. We remain ‘a government of laws, and not of men,’ Marbury v. Madison, 5 U. S. (1 Cranch.) 137, 163, only so long as our laws remain clear.” 630 F. 2d, at 1037 (citations abbreviated).

       The ordinance is quoted in pertinent part in n. 2, supra.

       Article 1, § 19, of the Texas Constitution provides:
      “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”
      Article 1, § 3, of the Texas Constitution provides in pertinent part:
      “All free men, when they form a social compact, have equal rights . . . .”

       “Review of a judgment which we cannot disturb, because it rests adequately upon a basis not subject to our examination, would be an anomaly.”

       If this contention is correct, we may review the Court of Appeals’ interpretation of federal law. Cf. Zacchini v. Scripps-Howard Broadcasting Co., 433 U. S. 562, 568; Mental Hygiene Dept. v. Kirchner, 380 U. S. 194, 198; Missouri ex rel. Southern R. Co. v. Mayfield, 340 U. S. 1, 5; Minnesota v. National Tea Co., 309 U. S. 551, 554-555; State Tax Comm’n v. Van Cott, 306 U. S. 511, 514.

       In a section of its opinion entitled “Rational Basis,” the Court of Appeals twice set forth a rational-basis test. See 630 F. 2d, at 1039. In the first paragraph, the court stated that “[t]he test requires that legislative action be rationally related to the accomplishment of a legitimate state purpose,” and cited both federal and state decisions in support of that formulation. In the second paragraph, the court stated that “[t]he test requires that legislation constitute a means that is ‘reasonable, not arbitrary and rests “upon some ground of difference having a fair and substantial relation to the object of the legislation . . . quoting from a decision of the Texas Supreme Court, Texas Woman’s University v. Chayklintaste, 530 S. W. 2d 927, 928 (1975), which in turn quoted from Reed v. Reed, 404 U. S. 71, 76. A number of this Court’s decisions were cited as in accord with this formulation. Although we cannot be sure, we might reasonably infer that the second formulation of the test represents the Court of Appeals’ interpretation of Texas law.

       Our dissenting Brethren suggest that our “view allows federal courts overruling state statutes to avoid appellate review here simply by adding citations to state cases when applying federal law,” post, at 300 (Powell, J., concurring in part and dissenting in part). We are unwilling to assume that any federal judge would discharge his judicial responsibilities in that fashion. In any event, in this case we merely hold that the Court of Appeals must explain the basis for its conclusion, if there be one, that the state ground is adequate and independent of the federal ground.

       Cf. Mental Hygiene Dept. v. Kirchner, supra, at 196-197 (footnotes omitted):
      “The California Supreme Court did not state whether its holding was based on the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States or the equivalent provisions of the California Constitution, or both. While we might speculate from the choice of words used in the opinion, and the authorities cited by the court, which provision was the basis for the judgment of the state court, we are unable to say with any degree of certainty that the judgment of the California Supreme Court was not based on an adequate and independent nonfederal ground. This Court is always wary of assuming jurisdiction of a case from a state court unless it -is plain that a federal question is necessarily presented, and the party seeking review here must show that we have jurisdiction of the case. Were we to assume that the federal question was the basis for the decision below, it is clear that the California Supreme Court, either on remand or in another case presenting the same issues, could inform us that its opinion was in fact based, at least in part, on the California Constitution, thus leaving the result untouched by whatever conclusions this Court might have reached on the merits of the federal question. For reasons that follow we conclude that further clarifying proceedings in the California Supreme Court are called for under the principles stated in Minnesota v. National Tea Co., 309 U. S. 551.”

       I agree that this issue has not been mooted by the city’s revision of the ordinance. This conclusion is not inconsistent with our recent disposition of Princeton University v. Schmid, ante, p. 100 (per curiam). In that case, Princeton University's regulations governing solicitation and similar activity on University property were held invalid by the New Jersey Supreme Court. While the case was pending before the New Jersey court, Princeton substantially amended the contested regulations. On appeal to this Court, we held that the validity of the old regulations had become a moot issue. Unlike the city of Mesquite, Princeton gave no indication that it desired to return to the original regulatory scheme and would do so absent a judicial barrier. In this case, as noted in the Court’s opinion, Mesquite “has announced just such an intention.” Ante, at 289, n. 11. Because the test of whether the cessation of allegedly illegal action moots a case requires that we evaluate the likelihood that the challenged action will recur, County of Los Angeles v. Davis, 440 U. S. 625 (1979), it is on this basis that our disposition of the two cases is consistent.

       630 F. 2d 1029, 1038-1039 (CA5 1980):
      “We hold that the seventeen year old age requirement violates both the United States and Texas constitutional guarantees of due process of law, and that the application of this age requirement to coin-operated amusement centers violates the federal and Texas constitutional guarantees of equal protection of the law” (footnotes omitted).

       Tex. Const., Art. I, §3 (“All free men, when they form a social compact, have equal rights . . .”) and § 19 (“No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land”).

       See also Delaware v. Prouse, 440 U. S. 648 (1979) (reaching federal issues when interpretation of State Constitution depends on federal law); Cicenia v. Lagay, 357 U. S. 504, 507, n. 2 (1958) (After looking at record and opinion below, Court concludes that State Supreme Court’s dismissal appears to be based on federal ground); Williams v. Kaiser, 323 U. S. 471 (1945) (The only cited sources for an independent state ground are considered insubstantial by the Court; Court proceeds to merits of federal issue); New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 69 (1928) (Given that State Constitution has no Equal Protection Clause, Court concludes that federal law must have been determinative).
      In Herb v. Pitcairn, 324 U. S. 117 (1945), the lower court dismissed complaints with no indication of whether the dismissal was based on state or federal law. The Court continued the cases pending clarification of the lower court’s decisional basis. In announcing this outcome, the Court stated that it would not review a judgment of a state court “until the fact that [the decision] does not [rest on an adequate and independent state ground] appears of record.” Id., at 128. Pitcairn did not, however, adopt the rigid rule the Court apparently adopts today. The Court continued to be willing to look at available record evidence (none was available in Pitcairn) to determine whether the decision below was based on an adequate and independent state ground. See Cicenia v. Lagay, supra; Konigsberg v. State Bar of California, 353 U. S. 252 (1957).

       The Court reports that the Court of Appeals cited four Texas cases, but one case was cited as procedural history in the dispute between these parties, not as relevant to any question of Texas law. See 630 F. 2d, at 1034, n. 8.

         Fritz was decided on December 9, 1980; as the Court of Appeals had decided this case on November 17, 1980, it could not have been influenced by Fritz.

       This Court has never rejected either Royster Guano or Reed v. Reed. As stated in Fritz, “[t]he most arrogant legal scholar would not claim that all [Supreme Court] cases appl[y] a uniform or consistent test under equal protection principles.” 449 U. S., at 177, n. 10. In view of the example we have set, there is no reason to perceive inferences of divergent federal- and state-court views because of the failure of the Court of Appeals or Texas courts to use entirely consistent terminology.
      Moreover, after its generalizations as to rational-basis analysis, the Court of Appeals for the Fifth Circuit went on to say that even if “the challenged ordinance had a rational basis ... we would nevertheless be compelled to strike it down” as an infringement of the fundamental right of association. 630 F. 2d, at 1041. No less than 29 federal cases were cited for this conclusion. No Texas case was cited. Id., at 1041-1044.

       This includes the entire discussion of the rational-basis standard of review by the Court of Appeals. 630 F. 2d, at 1039. It is this portion of the Court of Appeals’ opinion that the Court today relies on for saying that “it is surely not evident that the Texas standard and the federal standard are congruent.” Ante, at 294. See supra, at 301-302, and n. 6.


source: Caselaw Access Project

author: Justice Stevens Justice Blackmun,

license: Public Domain

text:
    JEWETT et ux. v. COMMISSIONER OF INTERNAL REVENUE
    No. 80-1614.
    Argued December 1, 1981
    Decided February 23, 1982
    Stevens, J., delivered the opinion of the Court, in which Burger, C. J., and Brennan, White, Marshall, and Powell, JJ., joined. Blackmun, J., filed a dissenting opinion, in which Rehnquist and O’Con-nor, JJ., joined, post, p. 319.

      James D. St. Clair argued the cause for petitioners. With him on the briefs were John G. Fabiano, Timothy H. Gailey, and Christopher T. Carlson.

      Stuart A. Smith argued the cause for respondent. With him on the brief were Solicitor General Lee, Acting Assistant Attorney General Murray, and Jonathan S. Cohen.

       Briefs of amid curiae urging reversal were filed by Robert L. Stem for Mayer, Brown & Platt; and by Charles C. Parlin, Jr., and Robert A. Bergquist for Adelaide C. Griswold et al.

        Coleman Burke, Wallace B. Liverance, Jr., and Geoffrey J. O’Connor filed a brief for the Estate of Helen W. Halbach, John Poiner, Executor, as amicus curiae.

   Justice Stevens

delivered the opinion of the Court.

A trust beneficiary’s refusal to accept ownership of property may constitute an indirect gift to a successor in interest subject to federal gift tax liability. 26 U. S. C. §§2501, 2511. Under Treasury Regulation §25.2511-l(c), however, such a refusal is not subject to tax if it is effective under local law and made “within a reasonable time after knowledge of the existence of the transfer.” The petitioner husband (hereafter petitioner) in this case executed disclaimers of a contingent interest in a testamentary trust 33 years after that interest was created, but while it was still contingent. The narrow question presented is whether the “transfer” referred to in the Regulation occurs when the interest is created, as the Government contends, or at a later time when the interest either vests or becomes possessory, as argued by petitioner.

Petitioner’s grandmother, Margaret Weyerhaeuser Jew-ett, died in 1939 leaving the bulk of her substantial estate in a testamentary trust. Her will, executed in Massachusetts, provided that the trust income should be paid to petitioner’s grandfather during his life, and thereafter to petitioner’s parents. Upon the death of the surviving parent, the principal was to be divided “into equal shares or trusts so that there shall be one share for each child of my said son [petitioner’s father] then living and one share for the issue then living representing each child of my said son then dead.” App. 9. Petitioner’s mother is the sole surviving life tenant. Thus, under the testamentary plan, if petitioner survived his mother, he would receive one share of the corpus of the trust; if he predeceased his mother, that share would be distributed to his issue. Since petitioner’s parents had two children, his share of the trust amounted to one-half of the principal.

In 1972, when petitioner was 45 years old, he executed two disclaimers. The disclaimers each recognized that petitioner had “an interest in fifty percent (50%) of the trust estate . . . provided that he survives” his mother. Id., at 15. In the first disclaimer, petitioner renounced his right to receive 95% “of the aforesaid fifty percent (50%) of the remainder of the trust estate,” ibid.; in the second he renounced his right to the remaining 5%. In 1972 the value of the trust exceeded $8 million.

Petitioner and his wife filed gift tax returns for the third and fourth quarters of 1972 in which they advised the Commissioner of the disclaimers, but did not treat them as taxable gifts. The Commissioner assessed a deficiency of approximately $750,000. He concluded that the disclaimers were indirect transfers of property by gift within the meaning of §§ 2501(a)(1) and 2511(a) of the Internal Revenue Code, and that they were not excepted from tax under Treas. Reg. §25.2511-l(c) because they were not made “within a reasonable time after knowledge” of his grandmother’s transfer to him of an interest in the trust estate. Petitioner then filed this action in the Tax Court seeking a redetermination of the deficiency.

In the Tax Court and in the Court of Appeals, petitioner argued that at the time the disclaimers were made he had nothing more than a contingent interest in the trust, and that the “reasonable time” in which a tax-free disclaimer could be made did not begin to run until the interest became vested and possessory upon the death of the last surviving life tenant. Although a comparable argument had been accepted by the Court of Appeals for the Eighth Circuit in Keinath v. Commissioner, 480 F. 2d 57 (1973), it was rejected by the Tax Court and by the Ninth Circuit in this case. We granted certiorari to resolve the conflict. 452 U. S. 904.

Petitioner relies heavily on the plain language of the Treasury Regulation and on early decisions that influenced its draftsmen. Before analyzing that language and its history, it is appropriate to review the statutory provisions that the Regulation interprets.

I

Section 2501(a)(1) of the Internal Revenue Code imposes a tax “on the transfer of property by gift.” Section 2511(a) provides that the tax shall apply “whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible.” As the Senate and House Reports explain:

“The terms ‘property,’ ‘transfer,’ ‘gift,’ and ‘indirectly’ are used in the broadest and most comprehensive sense; the term ‘property’ reaching every species of right or interest protected by law and having an exchangeable value.”

In Smith v. Shaughnessy, 318 U. S. 176, 180, the Court noted that “[t]he language of the gift tax statute, ‘property . . . real or personal, tangible or intangible,’ is broad enough to include property, however conceptual or contingent.”

Our expansive reading of the statutory language in Smith unquestionably encompasses an indirect transfer, effected by means of a disclaimer, of a contingent future interest in a trust. Congress enacted the gift tax as a “corollary” or “supplement” to the estate tax. In Estate of Sanford v. Commissioner, 308 U. S. 39, 44, the Court explained that “[a]n important, if not the main, purpose of the gift tax was to prevent or compensate for avoidance of death taxes by taxing the gifts of property inter vivos which, but for the gifts, would be subject in its original or converted form to the tax laid upon transfers at death.” Since the practical effect of petitioner’s disclaimers was to reduce the expected size of his taxable estate and to confer a gratuitous benefit upon the natural objects of his bounty, the treatment of the disclaimers as taxable gifts is fully consistent with the basic purpose of the statutory scheme.

II

The controlling Treasury Regulation provides that a refusal to accept ownership of property transferred from a decedent does not constitute a gift if two conditions are met. First, the refusal must be effective under the law governing the administration of the decedent’s estate. Second, the refusal must be made “within a reasonable time after knowledge of the existence of the transfer.”

There is no dispute in this case that the first requirement has been satisfied; the disclaimers were effective under Massachusetts law. The controversy arises from the second requirement; specifically, it is over the meaning of the word “transfer,” which may be read to refer to the creation of petitioner’s remainder interest by his grandmother’s will, or to either the vesting of that interest or the distribution of tangible assets upon the death of the life tenant. Both positions find support in the language of the Regulation.

To a layman the word “transfer” would normally describe a change in ownership of an existing interest rather than the creation of a new interest. Moreover, the reference to a transfer of “ownership of a decedent’s property” suggests that the transferee must acquire property that once had been owned by the decedent; petitioner’s grandmother never owned the future interests that her will created, but she once did own the assets (or their equivalent) that the remainder-men will acquire when their interests become possessory in character. Thus, language in the Regulation implies that the relevant “transfer” had not yet occurred when petitioner renounced his interest in the trust.

Other language, however, indicates that the relevant “transfer” occurs at the time of the testator’s death. The word “transfer” is the basic term used in the gift tax provisions to describe any passage of property without consideration that may have tax consequences. See 26 U. S. C. §§2501, 2511, quoted in nn. 2, 3, supra. The Regulation describes a transfer that “is effected by the decedent’s will” (or by the law of descent and distribution of intestate property), not by a subsequent vesting event or distribution of property. The property must be transferred “from a decedent,” not from an estate executor or trust administrator. The lack of any reference in the Regulation to future interests or contingent remainders, and the consistent focus on transfers effected by the decedent by will or through the laws of intestate distribution, undermine the suggestion that the relevant transfer occurs other than at the time of the testator’s death. The Regulation also requires “knowledge of the existence of the transfer”; since a person to whom assets have actually been distributed would seldom, if ever, lack knowledge of the existence of such a transfer, it seems more likely that this provision was drafted to protect persons who had no knowledge of the creation of an interest.

On balance, we believe that the text of the Regulation supports the Commissioner’s interpretation. Because that text is not entirely clear, however, it is appropriate to examine briefly the Regulation’s history.

Ill

Treasury Regulation §25.2511-l(c) has not been changed since it was promulgated on November 15, 1958. The form of the Regulation, however, is somewhat different from a draft that was first proposed on January 3, 1957. That draft required a renunciation to be made “within a reasonable time after knowledge of the existence of the interest,” rather than after knowledge of the existence of the “transfer.” The word “interest” unquestionably would encompass a contingent remainder even if the word “transfer” arguably would not. Thus, if the initial draft had been adopted without change, petitioner’s disclaimers certainly would be subject to tax. Petitioner contends that the drafting change must have been intended to avoid this consequence.

An assessment of petitioner’s argument requires an examination of the reason for the change in the Regulation’s language. The explanation of the change rendered by the Commissioner in 1958 indicates that it was intended to accomplish a purpose quite different from that suggested by petitioner.

A Memorandum from the Commissioner to the Secretary of the Treasury submitted on October 1,1958, explained that the change in language was intended to capture “the proper distinction” between two early court decisions that the Regulation had attempted to codify. In both of these cases the transferee had renounced a fee interest before the administration of the decedent’s estate had been completed. In the earlier case, Brown v. Routzahn, 63 F. 2d 914 (CA6 1933), cert. denied, 290 U. S. 641, a husband refused to accept a bequest under his wife’s will. Under Ohio law the disclaimer was effective because it preceded the distribution of his wife’s estate. Since the husband had never acquired ownership of the property, his disclaimer was held not to constitute the transfer of an interest; rather, it was deemed an exercise of a right to refuse a gift of property. Accordingly, the renunciation was held not be a gift in contemplation of death for purposes of determining the husband’s estate tax. In the second case, Hardenbergh v. Commissioner, 198 F. 2d 63 (CA8 1952), cert. denied, 344 U. S. 836, the decedent died intestate leaving a wife, a daughter, and a son by a prior marriage. To effectuate the decedent’s intent to equalize the wealth of the three, the wife and daughter relinquished their rights to their intestate shares. Under Minnesota law, however, “title to an interest in decedent’s estate vested in the taxpayers by operation of law which neither had the power to prevent.” 198 F. 2d, at 66. Since local law denied them the power to renounce the interest, the taxpayers’ disclaimers were not effective and constituted gifts subject to the federal gift tax.

As indicated in the Commissioner’s Memorandum, Treas. Reg. §25.2511-l(c) sought to preserve the distinction between these two cases. Originally, the Regulation tracked language in the Hardenbergh opinion and provided that a disclaimer was taxable only if title to the property had “vested” under state law. On consideration, however, the Commissioner recognized that this language did not capture “the proper distinction between these two court cases”; indeed, in Brown v. Routzahn, the property interest had fully “vested” at the time of the taxpayer’s renunciation. Thus, to incorporate the proper distinction, the Commissioner changed the “vesting” requirement to a requirement that “the law governing the administration of the decedent’s estate” must give a right to “refuse to accept ownership of property transferred from a decedent.” Having eliminated the “vested property interest” language from the first part of the Regulation, the Commissioner correspondingly changed the second part to read “within a reasonable time after knowledge of the existence of the transfer,” rather than “within a reasonable time after knowledge of the existence of the interest.”

Thus, the purpose of the change in the Regulation was not to exclude contingent remainders. Neither Brown nor Hardenbergh concerned contingent interests. Since the original draft of the Regulation supports the Commissioner’s position in this case, and since the change in its form was made for a reason that is unrelated to the issue presented, the Regulation’s history buttresses the Commissioner’s position.

Petitioner also contends that the history of the Regulation demonstrates that its draftsmen merely intended to codify the rules of Brown v. Routzahn and Hardenbergh v. Commissioner, and that under those cases state law controlled both the “right” to renounce and the “timeliness” of the renunciation. Although petitioner accurately interprets these two eases, his interpretation of the Regulation would render half of it superfluous. The Regulation explicitly imposes two requirements: (1) the disclaimer must be effective as a matter of local law; and (2) the disclaimer must be made within a reasonable time. If timeliness were governed solely by local law, the second requirement would be redundant. ’WTiile it is possible that local law may require a disclaimer to be timely to be effective, such a requirement would not absolve the taxpayer from the separate timeliness requirement imposed by the federal Regulation. Otherwise, the Regulation would be complete with a single requirement that the disclaimer be effective under local law.

> h-4

Petitioner s remaining arguments may be answered quickly. In the Tax Reform Act of 1976, Congress established specific standards for determining whether a disclaimer constitutes a taxable gift; those new standards would support the Commissioner’s position in this case if the original transfers had occurred after the effective date of the Act. Petitioner argues that the legislative decision not to apply those standards retroactively is evidence that a different rule was previously effective. It is clear, however, that Congress expressed no opinion on the proper interpretation of the Regulation at issue in this case; it merely established an unambiguous rule that should apply in the future.

Petitioner also argues that it is unfair to apply the 1958 Regulation “retroactively” to an interest that had been created previously; petitioner asserts that, by the time the Regulation was adopted, it was already too late — according to the Commissioner’s view — to disclaim the interest. The argument lacks merit. It is based on an assumption that petitioner had a “right” to renounce the interest without tax consequences that was “taken away” by the 1958 Regulation. Petitioner never had such a right. Indeed, petitioner does not argue that taxation of the disclaimers is inconsistent with the statutory provisions imposing a gift tax, which were enacted long before petitioner’s interest in the trust was created. The 1958 Regulation was adopted well in advance of the disclaimers in this case; we see no “retroactivity” problem.

Finally, petitioner argues that the disclaimer of a contingent remainder is not a taxable event by analogizing it to an exercise of a special power of appointment, which generally is not considered a taxable transfer. 26 U. S. C. §2514. As the Commissioner notes in response, however, a disclaim-ant’s control over property more closely resembles a general power of appointment, the exercise of which is a taxable transfer. Ibid. Unlike the holder of a special power — but like the holder of a general power — a disclaimant may decide to retain the interest himself. It is this characteristic of the control exercised by a disclaimant that makes a disclaimer a “transfer” within the scope of the gift tax provisions.

V

The Commissioner’s interpretation of the Regulation has been consistent over the years and is entitled to respect. This canon of construction, which generally applies to the Commissioner’s interpretation of the Internal Revenue Code, see Commissioner v. Portland Cement Co. of Utah, 450 U. S. 156, 169, is even more forceful when applied to the Commissioner’s interpretation of his own Regulation.

Since the relevant “transfer” in this case occurred when petitioner’s grandmother irrevocably transferred her assets to a testamentary trust, petitioner’s disclaimers of the rights created by that trust were not made within a reasonable time. Even accepting petitioner’s argument that the clock did not begin to run until he reached the age of majority, the disclaimers were made after the passage of 24 years. As the Tax Court explained:

“The petitioner possessed, for 24 years, the effective right to determine who should ultimately receive the benefits of a 50-percent remainder interest of a trust which, in 1972, had a corpus of approximately $8 million. He waited to act in respect of that remainder interest until the surviving life beneficiary was over 70 years of age and until he himself was 45 and, it appears, a man of substantial means. In 1972, by the execution of two disclaimers, he elected to let the property pass according to the alternative provisions of his grandmother’s will — to the natural objects of his bounty. This, we hold, was an exercise of control over the disposition of property subject to the gift tax imposed by section 2501.” 70 T. C. 430, 438 (1978) (footnote omitted).

We agree. The Commissioner’s assessment of a tax was proper, both under the statute and the Regulation.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Justice Blackmun,

with whom Justice Rehnquist and Justice O’Connor join,

dissenting.

I do not find this case as easy or as clear on behalf of the Government as a reading of the Court’s opinion would lead one to believe. While the issue could be described as somewhat close, I conclude that the petitioners have much the better of the argument, and I would reverse the judgment of the Court of Appeals.

I

Margaret Weyerhaeuser Jewett, grandmother of petitioner George F. Jewett, Jr:, died testate on January 14, 1939. At her death she was a resident of Massachusetts. She left a will which was duly admitted to probate in that Commonwealth.

By her will the decedent created a trust for the benefit of her husband, James R. Jewett, during his lifetime, and thereafter for the benefit of her son, George F. Jewett, and his wife, Mary, for their respective lives. On the death of the survivor of the three life beneficiaries, the trust estate is to be distributed to the then living children of George F. Jew-ett and to the then living issue of any deceased child of George F. Jewett, in equal shares by right of representation.

Petitioner George F. Jewett, Jr., was born April 10, 1927; he thus was not yet 12 years old when his grandmother died. The testatrix’ husband, James, and her son, George, died prior to 1972. Mary is still living; she was born March 7, 1901.

On August 30, 1972, petitioner executed an instrument disclaiming and renouncing the major portion of any right to receive any remainder of the trust estate upon the death of his mother. On December 14 of that year, petitioner executed a second instrument disclaiming and renouncing the remaining portion of any such right. It is undisputed that these 1972 disclaimers were valid, timely, and effective under the applicable Massachusetts law.

Petitioner George F. Jewett, Jr., and his wife, petitioner Lucille M. Jewett, filed federal gift tax returns for the calendar quarters ended September 30 and December 31,1972, respectively. Those returns notified respondent Commissioner of the disclaimers but did not acknowledge them as taxable transfers for federal gift tax purposes.

On audit, the Commissioner determined that the disclaimers were not “made within a reasonable time after knowledge of the existence of the transfer,” within the meaning of Treas. Reg. §25.2511-l(c), 26 CFR § 25.2511-1(c) (1981), and thus were transfers subject to federal gift tax under §§ 2501(a)(1) and 2511(a) of the Internal Revenue Code of 1954, as amended, 26 U. S. C. §§ 2501(a)(1) and 2511(a). Deficiencies of approximately $750,000 were determined.

Petitioners sought redetermination of the deficiencies in the United States Tax Court. That court, in a reviewed decision, ruled in favor of the Commissioner. 70 T. C. 430 (1978). In so doing, the court followed its earlier ruling in Keinath v. Commissioner, 58 T. C. 352 (1972), an unre-viewed decision that had been reversed, 480 F. 2d 57 (1973), by a unanimous panel of the United States Court of Appeals for the Eighth Circuit five years before. In the present case, a panel of the Ninth Circuit, by a divided vote, affirmed the Tax Court. 638 F. 2d 93 (1980). Because of the conflict, so created, between judgments of two Courts of Appeals, the case is here.

II

As the Court observes, ante, at 311, the language of the Regulation provides support for the petitioners as well as for the Commissioner. The Court also acknowledges that the Regulation has language that “implies that the relevant ‘transfer’ had not yet occurred when petitioner renounced his interest in the trust.” Ibid. The Court, however, opts for the Commissioner’s opposing interpretation. I am persuaded otherwise.

To be sure, certain factors lend colorable support to the Commissioner’s position: (a) Although petitioner was not yet 12 years old when the testatrix died, he attained the age of 21 in 1948, 24 years before he executed the disclaimers in 1972. (b) Sections 2501(a)(1) and 2511(a) of the Code are broad and sweeping and were intended to reach every “transfer of property by gift,” whether in trust or otherwise, and whether direct or indirect, (c) And to accept petitioners’ position could mean, as a practical matter, that one who is a beneficiary of a trust, such as this testatrix created, may stand aside for a long period before disclaiming and thus, in a sense, may make that disclaimer a part of his own estate planning when actual possessory enjoyment of the property is nearer at hand and its desirability or a need for it is better evaluated than many years before.

The other side of the controversy, however, is not without substantial support. The federal gift tax does not deal with abstractions. It is concerned with “the transfer of property by gift.” 26 U. S. C. § 2501(a)(1). With the development of testamentary trusts — or, for that matter, of inter vivos trusts — legally recognized “interests” of various kinds, pos-sessory and anticipatory, can be created by the trustor. The beneficiary of a contingent remainder or, as the Court seems to suggest here, ante, at 308, n. 5, of “a vested remainder subject to divestiture,” however, may never realize anything by way of actual enjoyment of income or corpus. The contingencies upon which enjoyment depends may never ripen. In particular, the contingent beneficiary may die while the life beneficiary still lives.

These possibilities, accompanied by the monetary impact of gift and death taxes led courts and legislative bodies to recognize or develop common-law disclaimer and to enact preventive statutory provisions. Indeed, the Commissioner here, in the Regulation at issue, § 25.2511 — 1(c), recognizes a right to refuse, free of gift tax, acceptance of “ownership of property transferred from a decedent,” provided.that the right to refuse is effective under local law and the refusal is “made within a reasonable time after knowledge of the existence of the transfer.” It is accepted that the disclaimers in the present case were effective under Massachusetts law. I search the statute in vain, however, for any statutory mention of, or provision for, the reasonable-time requirement. One might say, therefore, that the Commissioner in his wisdom acted as a matter of grace to relieve, upon the conditions specified, what could be difficult and potentially unfair and financially disastrous tax situations.

Be that as it may, I regard any “transfer” here, not as one from George F. Jewett, Jr. (the necessary predicate of the Commissioner’s determination), but as a transfer from the testatrix. She is the one from whom the largess flows. Petitioner, of course, was in the line of designated beneficiaries, but he stepped from that line through the acts of disclaimer, and the transfer will pass him by.

There are other practical considerations that have appeal for me:

1. Accepting the Commissioner’s Regulation and its “reasonable time” requirement, it seems to me that that time is to be measured, not from the death of the testatrix in 1939, but from the death of the preceding life beneficiary. That life beneficiary, petitioner’s mother, is still alive. Petitioner has realized no benefit from the trust and never will have any benefit if he predeceases his mother. It is the contingency event that is important and makes sense in the consideration of any disclaimer.

2. A disclaimer is fundamentally different from a voluntary transfer of property. A disclaimer is a refusal to accept property ab initio. Bel v. United States, 452 F. 2d 683, 693 (CA5 1971), cert. denied, 406 U. S. 919 (1972); see Black’s Law Dictionary 417 (5th ed. 1979). The law of disclaimer is founded on the basic property-law concepts thát a transfer is not complete until its acceptance by the recipient, and that no person can be forced to accept property against his will. A transferor chooses the recipients of the transferred property; a disclaimant makes no such selection, for that selection has been made by the trustor. Petitioner’s disclaimers merely renounced any future right to receive corpus of the trust; they did not direct or even purport to direct the future distribution of that corpus.

3. Until the Ninth Circuit, by its divided vote, decided the present case, the only Court of Appeals authority on the issue was Keinath v. Commissioner, supra. For reasons best known to 'him, the Commissioner did not seek certiorari in that case and the decision stood unmolested by any opposing appellate court authority for over seven years. Indeed, it was expressly reaffirmed by the Eighth Circuit sitting en banc in Cottrell v. Commissioner, 628 F. 2d 1127 (1980), a case decided just a few weeks before the Ninth Circuit decision. In the interim, a substantial period as the tax law goes, taxpayers and their advisers have properly assumed that a disclaimer, valid under state law, was valid for federal tax purposes as well if it were timely made. Judge Harris, dissenting below, observed that “it is particularly important in matters of taxation that established precedent be followed.” 638 F. 2d, at 96. He went on to say that if the case were one of first impression, he “might well join with the majority” but “[njumerous tax practitioners have undoubtedly relied on this [the Keinath] opinion in advising as to the tax consequences of such acts as are involved in the instant case, and justifiably so.” Ibid. I agree that stability in tax law is desirable. Except for the Tax Court, the pronounced law appeared to have achieved a level of stability after Keinath.

4. The Eighth Circuit’s analysis of the legal issue, it seems to me, is sound. In Keinath the court stressed that the remainder beneficiary “at no time accepted any income or principal from the trust,” 480 F. 2d, at 59, and that within eight weeks of the death of the testator’s widow-life beneficiary, the remainderman executed his disclaimer. It was established that the disclaimer was valid and timely under applicable state law and that as a result thereof the trust estate passed to the disclaimant’s children. The court noted that “reasonable time,” as that term is used in the Regulation, is not defined either in the Code or the Regulation. The basic common-law requirements that the disclaimer must be made within a reasonable time and that it be effective under local law “are but a codification of common law principles applicable to the doctrine of disclaimers.” Id., at 61. A central factor is the interpretation of the word “transfer” in the Regulation. The remainderman “had really nothing to accept or renounce by way of beneficial ownership or control of the property until he succeeded in outliving the life beneficiary.” Id., at 64. The court then held that, under the prevailing common law, the holder of a vested remainder interest subjected to divestiture has a reasonable time within which to disclaim after the death of the life beneficiary. Ibid. It distinguished Fuller v. Commissioner, 37 T. C. 147 (1961), upon which the Tax Court had relied, and did so on the factual grounds mentioned below.

In Cottrell, the Eighth Circuit, sitting en banc, adhered to its Keinath analysis. It felt the case was “indistinguishable in any material respect from Keinath.” 628 F. 2d, at 1128. It was undisputed that the disclaimer in question was valid under state law, that it was unequivocal, and that the taxpayer accepted no property before she disclaimed. As in Keinath, if the “reasonable time” period began with the death of the testator, the disclaimer was untimely, but if the critical event was the death of the life beneficiary, the disclaimer “was unquestionably timely, having been executed 16 days, and filed two months, thereafter.” 628 F. 2d, at 1129. There is nothing unfair or improper in allowing the remainderman to wait until the life beneficiary’s death and then decide whether to accept the bequest.

What the Eighth Circuit said by way of analysis, and held, in Keinath and Cottrell, when applied to the facts before us, is persuasive and should control here. The Ninth Circuit majority, without any particular analysis, merely disagreed with the Keinath and Cottrell reasoning and held, in a conclusory statement, that the “‘transfer’ as used in the regulation means the transfer to the disclaimant of the property interest disclaimed by him,” and that the transfer in question took place in 1939 when Mrs. Jewett died and petitioner received a contingent remainder from her estate. 638 F. 2d, at 96.

5. The Court notes, ante, at 316, that by the Tax Reform Act of 1976, Pub. L. 94-455, § 2009(b)(1), 26 U. S. C. §2518, Congress now has imposed a uniform tax treatment of disclaimers, independent of state law. Section 2518, as so added to the Code, however, was specifically made prospective only, that is, it was made applicable only to transfers creating an interest after 1976. Pub. L. 94-455, § 2009(e)(2), 90 Stat. 1896. It thus has no application to the present case.

The Court declares, ante, at 317: “Congress expressed no opinion on the proper interpretation of the Regulation at issue in this case,” but merely established an unambiguous rule for the future. That conclusion is not at all clear to me. Congress was aware of the Keinath decision. See H. R. Rep. No. 94-1380, p. 66, and n. 4 (1976). The House Committee on Ways and Means observed:

“The amendments apply with respect to transfers creating an interest in the person disclaiming made after December 31, 1976. In the case of transfers made before January 1, 1977, the rules relating to transfers under present law, including the period within which a disclaimer must be made, are to continue to apply to disclaimers made after December 31, 1976.” Id., at 67-68.

For me, this is an acknowledgment that the Keinath ruling represented what the law was prior to 1977, and what it still is for trust instruments effective before that calendar year. I cannot join the Court’s flat statement that “Congress expressed no opinion” on the existing law.

6. To be sure, the Tax Court has persisted in its contrary rulings. Those rulings, I feel, rest on an insecure base. The original case, from which all the other Tax Court decisions have flowed, was Fuller v. Commissioner, 37 T. C. 147 (1961), a reviewed case. In Fuller, the life beneficiary of five-eighths of the income of her husband’s testamentary trust received that income for many years before she renounced a portion of her five-eighths share. Thus, she realized actual enjoyment for a long period before she disclaimed. This, for me, is a vital fact that distinguishes the case from Keinath, Cottrell, and Jewett, where each disclaimant enjoyed no benefit whatsoever. Mrs. Fuller had accepted her gift before renouncing it.

The next Tax Court ease was Keinath v. Commissioner, 58 T. C. 352 (1972). The judge who decided Keinath relied on Fuller as controlling precedent. He acknowledged Mrs. Fuller’s receipt of income from the trust “for over 25 years,” conceded that the Fuller facts “are admittedly different,” but nevertheless ruled that “this distinction is immaterial.” 58 T. C., at 358. He did not read Fuller “as resting upon Mrs. Fuller’s acceptance of income from the trust but upon her acceptance of her interest in the trust.” 58 T. C., at 358.

The next pertinent Tax Court decision was that in the present case. 70 T. C. 430 (1978). There the court, in a reviewed decision, referred to, and relied upon, its own decision in Keinath which had been reversed by the Eighth Circuit. “We think that our decision in Keinath was correct and that it controls the decision in this case.” 70 T. C., at 435.

The last Tax Court cases are Estate of Halbach v. Commissioner, 71 T. C. 141 (1978), and Cottrell v. Commissioner, 72 T. C. 489 (1979). The former was a federal estate tax case centering on 26 U. S. C. §2035 (disclaimer within three years of death). The latter, concerning a sister of the Halbach decedent, related to federal gift tax. Neither was a reviewed decision. The judge in Cottrell, recognizing that that case was appealable only to the Eighth Circuit, avoided the Court of Appeals decision in Keinath by distinguishing it on grounds later found unacceptable by the Eighth Circuit majority when the Tax Court decision was reversed.

Such is the saga of the issue in the United States Tax Court. The cases build on one another, but the origin and base is Fuller. That original case, in my view, is clearly distinguishable on its facts and thus, indeed, is “a frail reed on which to lean.”

7. The Court’s and the Commissioner’s position also seems to me to embrace a distinct element of unfairness. The Commissioner stresses repeatedly the number of years that elapsed between the death of the testatrix and the execution of the disclaimers. This same element has been stressed in others of these cases. But to require the disclaimer long before the interest could ripen into enjoyment means that the decision must be made at a time when the disclaimant does not know what he is disclaiming or whether he ever would receive and enjoy any interest. This concern is compatible with the wording of the applicable Regulation which speaks of “knowledge of the existence of the transfer.” The Eighth Circuit recognized this element of unfairness in Cottrell. 628 F. 2d, at 1131.

For all these reasons, I would reverse the judgment of the Court of Appeals. I therefore respectfully dissent.

       Petitioner’s wife, Lucille M. Jewett, elected to consent to treat the gifts made by her husband as having been made by both husband and wife to the extent allowed by law. App. to Pet. for Cert. A-20.

       “A tax, computed as provided in section 2502, is hereby imposed for each calendar quarter on the transfer of property by gift during such calendar quarter by any individual resident or nonresident.” 26 U. S. C. 12501(a)(1).

       “Subject to the limitations contained in this chapter, the tax imposed by section 2501 shall apply whether the transfer is in trust or otherwise, whether the gift is direct or indirect, and whether the property is real or personal, tangible or intangible; but in the case of a nonresident not a citizen of the United States, shall apply to a transfer only if the property is situated within the United States.” 26 U. S. C. § 2511(a).

       “The gift tax also applies to gifts indirectly made. Thus, all transactions whereby property or property rights or interests are gratuitously passed or conferred upon another, regardless of the means or device employed, constitute gifts subject to tax. See further § 25.2512-8. Where the law governing the administration of the decedent’s estate gives a beneficiary, heir, or next-of-kin a right to completely and unqualifiedly refuse to accept ownership of property transferred from a decedent (whether the transfer is effected by the decedent’s will or by the law of descent and distribution of intestate property), a refusal to accept ownership does not constitute the making of a gift if the refusal is made within a reasonable time after knowledge of the existence of the transfer. The refusal must be unequivocable [sic] and effective under the local law. There can be no refusal of ownership of property after its acceptance.. Where the local law does not permit such a refusal, any disposition by the beneficiary, heir, or next-of-kin whereby ownership is transferred gratuitously to another constitutes the making of a gift by the beneficiary, heir, or next-of-kin. In any case where a refusal is purported to relate to only a part of the property, the determination of whether or not there has been a complete and unqualified refusal to accept ownership will depend on all of the facts and circumstances in each particular case, taking into account the recognition and effectiveness of such a purported refusal under the local law. In the absence of facts to the contrary, if a person fails to refuse to accept a transfer to him of ownership of a decedent’s property within a reasonable time after learning of the existence of the transfer, he will be presumed to have accepted the property. In illustration, if Blackacre was devised to A under the decedent’s will (which also provided that all lapsed legacies and devises shall go to B, the residuary beneficiary), and under local law A could refuse to accept ownership in which case title would be considered as never having passed to A, A’s refusal to accept Blackacre within a reasonable time of learning of the devise will not constitute the making of a gift by A to B. However, if a decedent who owned Greenacre died intestate with C and D as his only heirs, and under local law the heir of an intestate cannot, by refusal to accept, prevent himself from becoming an owner of intestate property, any gratuitous disposition by C (by whatever term it is known) whereby he gives up his ownership of a portion of Greenacre and D acquires the whole thereof constitutes the making of a gift by C to D.” Treas. Reg. § 25.2511-l(c), 26 CFR §25.2511-l(c) (1981).

       As did the Tax Court, we assume that petitioner’s interest in the trust is properly characterized as a contingent remainder. Although that interest is arguably a vested remainder subject to divestiture, the distinction is not one of substance for our purposes here. Cf. Helvering v. Hallock, 309 U. S. 106.

       In Keinath, the court applied “the prevailing common law rule” and held that the holder of a vested remainder interest subject to divestiture has a reasonable time after the death of the life beneficiary within which to renounce or disclaim the remainder without tax consequences. 480 F. 2d, at 64. The court emphasized that the holder of the remainder interest did not obtain a right to beneficial ownership and control of the property until the death of the life beneficiary. Ibid.

       70 T. C. 430 (1978).

       638 F. 2d 93 (1980).

       S. Rep. No. 665, 72d Cong., 1st Sess., 39 (1932).

       H. R. Rep. No. 708, 72d Cong., 1st Sess., 27 (1932).

       The actual value of the interest will be affected by the fact that it is not indefeasibly vested. As the Tax Court noted in this case:
      “The value of petitioner’s remainder interest was not, of course, equal to 50 percent of the value of the trust corpus. Rather, it depended upon actuarial factors reflecting the various contingencies.” 70 T. C., at 435, n. 3.

       The Committee Reports state that the gift tax was designed “to impose a tax which measurably approaches the estate tax which would have been payable on the donor’s death had the gifts not been made and the property given had constituted his estate at his death. The tax will reach gifts not reached, for one reason or another, by the estate tax.” H. R. Rep. No. 708, supra, at 28; S. Rep. No. 665, supra, at 40.

       Petitioner does not contend that the creation of an irrevocable trust for the benefit of alternative contingent remaindermen is not a “transfer” when made; if the creation of such a trust is a “transfer” of property within the meaning of the statute, a “transfer” occurred in this case at Margaret Weyerhaeuser Jewett’s death. In short, the use of the word “transfer” in Treas. Reg. § 25.2511 — 1(c) is not indicative of special meaning. To the contrary, Congress has specifically indicated that the term “transfer,” at least as used in the statutory provisions defining the gift tax, is used “in the broadest and most comprehensive sense.” See supra, at 309, and nn. 9, 10. It is not surprising that the draftsmen of the Regulation would choose the general term utilized by Congress to describe any passage of property with possible tax consequences.

       The January 3, 1957, draft of the Regulation provided, in part:
      “The renunciation of a vested property interest, such as the interest of an heir or next-of-kin, or devisee in whom title immediately vests upon a decedent’s death under local law, constitutes a gift to those persons who receive the property interest by means of the renunciation. On the other hand the renunciation of a gift, bequest, or inheritance, if under local law title does not immediately vest, is not a gift if the renunciation is complete, and is made within a reasonable time after knowledge of the existence of the interest.” 22 Fed. Reg. 58 (1957).

       The Memorandum is published in Tax Notes, July 27, 1981, p. 204. In pertinent part, the Memorandum explains:
      “In what was intended to be the application of the rules in Brown v. Routzahn (1933) 63 F. 2d 914, cert. denied 290 U. S. 641, and Hardenbergh v. Commissioner (1952) 198 F. 2d 63, cert. denied 344 U. S. 836, it was stated that where title to the property did not vest in the beneficiary or heir immediately upon the decedent’s death, the renunciation of the property did not constitute the making of a gift, but that where title vested in the beneficiary or heir immediately upon the decedent’s death, the act of the beneficiary or heir in giving up what passed to him from the decedent constituted the making of a gift. . . . Protests on these provisions were received. After reviewing these protests, we have reconsidered our position and now believe that the proper distinction between these two court cases turns on the question of whether under the applicable State law a beneficiary or heir can or cannot refuse to accept ownership of the property which passed from the decedent. Accordingly, we have revised paragraph (c) of section 25.2511-1 to reflect this change of position.”

       As the court stated in that case:
      “The [taxpayer] was in possession of the estate from 1912 until it was transferred to the trustees in 1920. It was not, however, in his possession as donee, but as a coexecutor. Nevertheless, at any time within that period he could have taken the one-third or made a renunciation that would have estopped him from claiming it. He did neither. It may be conceded, too, we think, that, had he died at any time between 1912 and the date of the distribution, this property would have passed under a general devise in his will, or, leaving no will, would have passed under the laws of descent and distribution as a part of his estate.” 63 F. 2d, at 916.

       It is possible that the federal timeliness requirement was added in response to the particular facts presented by Brown v. Routzahn, in which the taxpayer waited eight years to renounce the interest and did so when he was 72 years old. Although the renunciation was timely as a matter of Ohio law, the Treasury Department may well have thought that such delay was unacceptable for federal tax purposes. In practical effect, the 8-year delay made it likely that the renunciation decision was part of the taxpayer’s personal estate planning. As explained by the Tax Court in this case:
      “While a State court might be willing to accept a renunciation of a nonpossessory and not indefeasibly vested property interest after the passage of considerable time, so long as the interests of third parties have not been harmed, the passage of time is crucial to the scheme of the gift tax. With time, the potential recipient can wait to see if he himself needs the property, or whether he had better let it pass directly to the next generation.” 70 T. C., at 437.

       See Tax Reform Act of 1976, Pub. L. 94-455, 90 Stat. 1893, § 2009(b), 26 U. S. C. § 2518(b).

       After noting the decision in Keinath v. Commissioner, 480 F. 2d 57 (CA8 1973), and the “reasonable” time requirement of the Regulation, the House Report states that Congress
      “believe[d] that definitive rules concerning disclaimers should be provided for estate and gift tax purposes to achieve uniform treatment. In addition, [Congress] believe[d] that a uniform standard should be provided for determining the time within which a disclaimer must be made.” H. R. Rep. No. 94-1380, pp. 66-67 (1976).
      Nothing in the legislative history expresses an opinion on the proper interpretation of the previously controlling Regulation. Nor is such an opinion indicated by the mere enactment of the law; Congress may seek to clarify the future without affecting the past. Cf. Knetsch v. United States, 364 U. S. 361, 367-370.

       Petitioner’s argument would have more appeal had he attempted to renounce the interest immediately after the adoption of the 1958 Regulation, rather than some 14 years later.

       For convenience, any reference made herein to “petitioner” in the singular, refers to George F. Jewett, Jr., alone.

       Petitioners, as they were entitled to do under § 2513 of the Internal Revenue Code of 1954,26 U. S. C. § 2513, elected to treat any gift made by either as made equally by both.

       In Cottrell, three judges dissented because they felt that, in contrast with the factual situation in Keinath, the Cottrell taxpayer had “extensive” and “ultimate” control through a general testamentary power of appointment. They would modify the Keinath approach “where the remainder-man essentially controls the events which would cause divestiture of the interest.” They agreed, however, with the “general rule as applied to the facts of Keinath,” where an interest is “less than an indefeasibly vested remainder.” 628 F. 2d, at 1132-1133.
      It is of interest to note that the court in Cottrell observed: “The Commissioner has not asked us to overrule Keinath, and we are not inclined to do so on our own motion.” Id., at 1131.

       See, however, Estate of Rolin v. Commissioner, 68 T. C. 919, 927 (1977), aff'd, 588 F. 2d 368 (CA2 1978).


author: Per Curiam. Justice White,

text:
    CONSOLIDATED FREIGHTWAYS CORPORATION OF DELAWARE v. KASSEL et al.
    No. 79-1618.
    Argued November 9, 1981
    Decided February 23, 1982

      John H. Lederer argued the cause for petitioner. With him on the briefs were John Duncan Varda, Anthony R. Varda, and William C. Lewis, Jr.

      Mark E. Schantz, Solicitor General of Iowa, argued the cause for respondents. With him on the brief were Thomas J. Miller, Attorney General, Robert W. Goodwin, Special Assistant Attorney General, and Lester A. Paff, Assistant Attorney General.
   Per Curiam.

The writ of certiorari is dismissed as improvidently granted.

Justice O’Connor took no part in the consideration or decision of this case.

Justice White,

dissenting.

We granted certiorari in this case to decide one very narrow question: “May a court, without articulating its rationale, summarily deny an application for attorneys’ fees under 42 U. S. C. § 1988?” Petitioner concedes that “not... all cases require opinions,” Brief for Petitioner 6, n. 6, but argues that with respect to an application for fees under §1988 “[t]he combination of discretion and a standard for the exercise of that discretion necessitates a statement of reasons to determine whether the decision is proper.” Id, at 12. In my view, such an application is not sufficiently distinguishable from numerous other motions and applications that a court may concedely decide without opinion. Whether this is a good or bad method of exercising discretion in a particular case, or even in general, is not at issue in this case. Because I do not believe that there is any per se rule that a court may never summarily deny an application for fees, I would affirm the decision below.

Accordingly, I dissent from the majority’s disposition of this case.