OPINION and ORDER
The plaintiff, Fortis, Inc. (“Fortis”), brought this action to obtain a refund from the Internal Revenue Service (“IRS”) on excise taxes that Fortis had remitted for certain long-distance telephone service. The primary issue is whether the definition of taxable “toll telephone service” in 26 U.S.C. § 4252(b)(1) includes long-distance service where charges are based on the elapsed transmission time of a call but *168 not the distance the call travels. Fortis has filed a motion for summary judgment seeking judgment in its favor on the liability of the Government on Fortis’s claim to the refund. The Government opposes the motion and has filed a cross-motion for summary judgment dismissing the complaint on the grounds that the telephone service at issue falls within the definition in 26 U.S.C. § 4252(b)(1), or, in the alternative, falls within the other definitions of taxable telephone services in § 4252.
I.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R.Civ.P. 56(c);
see also Celotex Corp. v. Catrett,
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against' the moving party.
See Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
II.
The undisputed facts with respect to the plaintiffs refund claim are as follows. 1 *169 From October 1, 1998 through March 31, 2002, Fortis purchased from AT & T inbound and outbound international and domestic interstate long distance service and intrastate long distance service in the states of Georgia, Minnesota, Missouri, New York, and Wisconsin. (Pl.’s Rule 56.1 Statement of Undisputed Facts (“Pl.’s Rule 56.1 Stmt.”) ¶ 2.) The terms of For-tis’s inbound and outbound international and domestic long distance service were governed by various “contract tariffs” and AT & T’s interstate tariffs. (See id. ¶¶ 3-7 & Exs. la, 2-5.) Fortis’s intrastate service was purchased pursuant to AT & T’s Custom Network Services Tariffs filed with the applicable state regulatory authorities. (Id. ¶ 8.)
Under the rate schedules applicable to Fortis’s long distance service under the tariffs, with the exception of calls made to and from Mexico, the charge for each call was based on the call’s duration, or elapsed time. (See id. ¶ 9; see, e.g., Contract Tariff No. 13497, § 7.A, attached at id. Ex. 4.) The rate schedules specified that the rates applied for all “Mileages & Bands,” thus making the cost of a call independent of the distance the call travels. (Id.)
AT & T collected from Fortis federal excise taxes on the services provided to Fortis and was legally obligated to remit those taxes to the IRS and report the taxes paid each quarter on Form 720. (Id. ¶¶ 13-14.) On February 22, 2002, Fortis timely filed claims for a refund of $392,813.82 representing the aggregate amount of federal excise taxes Fortis paid on the services from October 1, 1998 through September 30, 2001. On October 25, 2002, Fortis timely filed claims for a refund of $46,571.02 representing the aggregate amount of federal excise taxes Fortis paid on the services from October 1, 2001 through March 31, 2002. (Id. ¶¶ 15, 17.) The IRS has received these claims and has not acted on them. (Id. ¶¶ 16,18.)
The plaintiff has now filed a motion for partial summary judgment on the Government’s liability to refund the plaintiffs taxes, although if the motion is granted, the amount of the refund would still need to be resolved. The Government has filed a cross-motion for summary judgment arguing that the judgment should be granted dismissing the complaint because the Government properly imposed and collected the telephone excise taxes at issue.
III.
The parties generally agree that there are no disputed issues of fact and that the motions primarily involve the same legal question of whether Fortis’s service can be taxed under 26 U.S.C. §§ 4251 and 4252. Section 4251 of the Internal Revenue Code imposes a three-percent excise tax on amounts paid for “communications services,” which includes (A) local telephone service, (B) toll telephone service, and (C) teletypewriter exchange service. 26 U.S.C. § 4251(a), (b)(1). Section 4252(b) defines “toll telephone service” as
(1) a telephonic quality communication for which (A) there is a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication and (B) the charge is paid within the United States, and
(2) a service which entitles the subscriber, upon payment of a periodic charge (determined as a flat amount or upon *170 the basis of total elapsed transmission time), to the privilege of an unlimited number of telephonic communications to or from all or a substantial portion of the persons having telephone or radio telephone stations in a specified area which is outside the local telephone system area in which the station provided with this service is located.
26 U.S.C. § 4252(b).
With predecessors dating to the nineteenth century, a federal excise tax on various telecommunications services has been in effect continuously from 1932 to the present. 2 Sections 4251 and 4252 were initially enacted in 1954 and amended in 1958, and Congress adopted the current definitions found in § 4252 in the Excise Tax Reduction Act of 1965, Pub.L. No. 89-44, § 302, 79 Stat. 136, 145-46 (the “1965 Act” or the “1965 amendments”). 3 At that time, AT & T was the dominant long-distance carrier in the United States, and the definition of “toll telephone service” covered AT & T’s two types of long-distance service: (1) “Message Telephone Service” (“MTS”) charged callers for each call based on the time of day, duration of the call, and the distance traveled; and (2) “Wide Area Telephone Service” (‘WATS”) generally allowed subscribers, for a flat charge, to make unlimited calls within a defined area, sometimes limited as to the total elapsed time. (See Def.’s Rule 56.1 Stmt. ¶¶ 1-2 & Ex. A (Decl. of Alan Pearce (“Pearce Decl.”), dated Nov. 17, 2003, at 3-5).) MTS rates were based on a system of “mileage bands,” where, for example, a different rate would be charged for calls traveling 1-10 miles, 11-22 miles, 23-55 miles, 56-124 miles, and so forth. (See Def.’s Rule 56.1 Stmt. ¶ 3; Pearce Decl. at 4.) In 1965 and the decades to follow, “MTS, plain old long distance service, was the largest, in terms of traffic volume and revenue levels, and the most publicly visible of the traditional telephone industry service offerings.” (See Pearce Decl. at 5.)
Between 1997 and 2000, however, AT & T and other long-distance carriers began to abandon the mileage-band system, due in part to competition with wireless carriers. (See Pearce Decl. at 10.) Now the dominant form of long-distance service involves a single interstate long-distance rate for the continental United States, although mileage bands remain in use in some states for intrastate' long-distance service. (See id.; Def.’s Rule 56.1 Stmt. ¶¶ 4-5.) This shift in service has raised the current issue: Do services that are not distance-sensitive fall within 26 U.S.C. § 4252(b)(1), which defines “toll telephone service” as involving “a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication?” That is, to be taxable under § 4252(b)(1), do long-distance charges need to be based on both distance traveled and time elapsed, or merely one or other?
Two district courts have recently addressed this same issue and have reached opposite conclusions.
Compare Am. Bankers Ins. Group v. United States (“ABIG”),
In
ABIG,
the court recognized that the first question in interpreting § 4252(b)(1) is whether the phrase “varies in amount with distance and time” is ambiguous. The court found that “the statutory language is ambiguous because Congress could be using the conjunctive word ‘and’ in this instance to mean ‘either or both of two alternatives,’ that is, to mean where there is a toll charge which varies in amount with the distance or elapsed transmission time or both.”
ABIG,
The
ABIG
court also supported its conclusion with IRS Revenue Ruling 79-404,
Literally, the service provided in this case does not come within the definition of ... “toll telephone service” as [it is] currently defined in section 4252 of the Code ... because the charge for such service does not vary with distance and therefore does not meet the requirement of section 4252(b)(1).
Rev. Rui. 79-404,
The
ABIG
court afforded the Ruling “great weight because it expresses a long
*172
standing IRS interpretation of § 4252(b)(1), it is entirely reasonable, and it is consistent with the intent of Congress to tax commercial long-distance telephone services.”
ABIG,
In
Office Max,
the district court for the Northern District of Ohio reached the opposite conclusion, finding that § 4252(b)(1) unambiguously defines toll service as involving charges that vary in amount with both distance and elapsed time.
Office Max,
Although the present-day Congress might wish to tax long-distance service as it is currently charged (i.e., on the basis of elapsed transmission time only), this Court believes the relevant inquiry is what Congress intended when it amended the statute in 1965. Given the fact that both distance and time influenced charges for long-distance service at that time, this Court feels compelled to conclude that the definition of that term is not ambiguous and that Congress’ plain and unambiguous requirement that charges must vary by both distance and time should be given full effect.
Id. at 995. The Office Max court also discussed in depth Revenue Ruling 79-404 and found that it was neither supported by the legislative history of the 1965 amendments, nor justified on the theory that a statute’s literal language can be abandoned if contrary to congressional intent. See id. at 999-1000 (reviewing legislative history); id. at 1001-03 (criticizing Ruling’s reliance on American Trucking and Corn Products and concluding that circumstances did not require departing from statute’s plain language). The Office Max court further found that congressional approval of the Ruling could not be inferred from subsequent reenactment of the statute. See id. at 1003-05.
IV.
In the current motions, the plaintiff and the defendant have taken positions on the application of 26 U.S.C. § 4252(b)(1) that are substantially similar to those taken by the courts in Office Max and ABIG, respectively. Fortis argues that the plain meaning of the provision requires that the long-distance toll charges at issue vary both in distance and time to be taxable. The Government argues that the Court should not apply the literal language of the statute' and should instead defer to the Revenue Ruling and enforce the alleged congressional purpose of taxing all long-distance telephone service.
A.
“Interpretation of a statute must begin with the statute’s language.”
Mallard v. United States District Court,
The initial issue in this case involves the portion of § 4252(b)(1) that defines toll telephone service as “a telephonic quality communication for which (A) there is a toll charge which varies in amount with the distance and elapsed transmission time of each individual communication.” 26 U.S.C. § 4252(b)(1). This Court agrees with the
Office Max
court that the meaning of the provision is plain: the amount of the toll charge must depend on both the distance and the elapsed time of the call. Under the long-distance service provided to Fortis, each call, except for those to and from Mexico, was charged based on the elapsed transmission time but without regard to the distance or mileage that the call traveled. The Government’s position effectively eliminates “distance” from the statute, thus violating the principle that “a statute generally should not be construed so as to render a word or clause inoperative.”
Rangolan v. County of Nassau,
The Government, in its reply papers, has advanced the
ABIG
court’s argument that the statute is ambiguous because “distance and time” could be understood disjunctively as to cover charges that vary based on either distance or time, or both. The
ABIG
court correctly points out that in some contexts “and” can mean “or,” and in fact there are examples of that usage in §§ 4251 and 4252.
See ABIG,
*174
Indeed, as the
Office Max
court noted in rejecting the
ABIG
court’s construction, “both distance and time were, in fact, factors in determining charges for toll telephone service at the time of the 1965 amendments.”
Office Max,
B.
The plain meaning of § 4252(b)(1) may still be set aside if it would lead to “absurd or futile results” or “merely an unreasonable one plainly at variance with the policy of the legislation as whole.”
Am. Trucking,
The Government argues that the legislative history to § 4252 indicates an intent to tax all long-distance service that should be enforced despite the literal language of the statute. Section 4252, in its current form, was enacted in 1965, and the Court of Appeals for the Federal Circuit, in a 1982 case involving charges for teletypewriter service under 26 U.S.C. § 4252(c), described the 1965 amendments as having three purposes.
See Trans-Lux Corp. v. United States,
Prior to 1965, taxable toll telephone service was defined in 26 U.S.C. § 4252(b) simply as “a telephone or radio telephone message or conversation for which (1) there is a toll charge, and (2) the charge is paid within the United States.” Excise Tax Technical Changes Act of 1958, Pub.L. No. 85-859, § 133,
a telephonic quality communication for which a toll charge is made which varies in amount with the distance and the lapsed transmission time of individual communications, but only if the charge is paid within the United States.
H.R.Rep. No. 89-433, 1965 U.S.C.C.A.N. 1645, 1677. 10 This passage from the House Report recited almost precisely the statutory language in § 4252(b)(1), and it effectively described AT & T’s MTS service, which billed subscribers per call based on a rate that was a function of the elapsed time and-the applicable mileage band-that is, the distance between the call’s origin and destination. (See Pearce Decl. at 4.) The definition of toll telephone service was also updated to include “WATS (wide area telephone service) ... whereby, for a flat charge, the subscriber is entitled to make unlimited calls within a defined area (sometimes limited as to the maximum number of hours).” H.R.Rep. No. 89-433, 1965 U.S.C.C.A.N. at 1677. This statement referred to § 4252(b)(2), and it described AT & T’s WATS service, which had been introduced in 1961. (See Pearce Decl. at 3.)
The Government maintains that although the 1965 amendments eliminated the broad definition of toll service previously in place, Congress allegedly did not intend to narrow the scope of taxable long-distance service. Instead, the Government argues, the definitions had “been updated and modified to make it clear that it is the service as such which is being taxed and not merely the equipment being supplied.” H.R.Rep. No. 89-433, 1965 U.S.C.C.A.N. at 1676. Because AT & T had a virtual monopoly over long distance service, the statute did effectively tax virtually all long-distance service available at the time, and the Government contends that the definitions, in the words of Revenue Ruling 79-404, merely “reflected] Congress’ understanding of how the charges for long distance calls were computed at the time the section was enacted.”
See
Rev. Rul. 79-404,
To an extent, the structure of the statute does reflect a general purpose of taxing all long-distance service, at least as it then existed. But, the refined definitions of the two forms of toll telephone service cannot be explained as merely a clarification that it is service rather than the equipment being taxed, and, as the
Trans-Lux
court concluded, it appears likely that “the definitions were updated and modified in order to meet the changing technology and market conditions of the industry.”
Trans-Lux,
Moreover, there is no language in § 4252(b) or its legislative history to support the Government’s claim that the overriding purpose of the statute was to tax all long-distance service in perpetuity. Nor is there any indication that Congress intended the definition of toll telephone service to be construed broadly or that it intended the services described to be merely illustrative. In contrast, § 4252(c), as enacted in 1965 and in its current form, defines “teletypewriter exchange service” as involving the “privilege of intercommunication” by a teletypewriter station “to which the subscriber is entitled upon payment of a charge or charges (whether such charge or charges are determined as a flat periodic amount, on the basis of distance and elapsed transmission time,
or in some other manner).”
26 U.S.C. § 4252(c) (emphasis added). Congress could have included similar inclusive language in § 4252(b) to indicate an intent to tax all forms of long-distance service regardless of the manner in which it was charged. But there is no such language in § 4252(b)(1) or its legislative history. The difference between subsections (b)(1) and (c) is powerful evidence of the statute’s meaning because “[w]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.”
Brown,
The more specific and narrow understanding of Congress’s intent — that Congress intended to tax the services it described — is also supported by the fact that the 1965 Act reduced the FET and scheduled it for elimination on January 1, 1969.
See Trans-Lux,
The Government, therefore, cannot make the “extraordinary showing of contrary intentions” to override the plain meaning of the statute.
See Lucien,
The recent emergence of service that falls outside of the current definitions does not justify abandoning the statute’s plain and original meaning. Updating the statute is not the Court’s role, particularly when doing so would require reading the term “distance” out of the statute. As the Supreme Court has instructed, “[t]here is a basic difference between filling a gap left by Congress’ silence and rewriting rules that Congress has affirmatively and specifically enacted.”
Lamie v. United States Tr.,
*178
For similar reasons, the cases cited by the Revenue Ruling and the Govern
ment
— American
Trucking
and
Com Products
— do not support abandoning the statute’s plain meaning. In
American Trucking,
the Supreme Court did state that courts may follow a statute’s purpose rather than it literal terms when the language would produce unreasonable results “plainly at variance with the policy of the legislation as a whole.”
Am. Trucking,
C.
The Government is also mistaken in arguing that Revenue Ruling 79-404 is entitled to deference and that the subsequent reenactment of the statute by Congress has given the Ruling the force of law. The Court of Appeals for the Second Circuit has stated that revenue rulings issued by the IRS “are entitled to great deference, and have been said to have the force of legal precedent unless unreasonable or inconsistent with the provisions of the Internal Revenue Code.”
Gillespie v. United States,
In any event, even under the more deferential standard, Revenue Ruling 79-404 is not entitled to deference because it is inconsistent with the unambiguous definition of toll telephone service in § 4252(b)(1). The Revenue Ruling concedes that its interpretation of § 4252(b)(1) is contrary to the statute’s literal language, and, as explained above, the Ruling’s reliance on
American Trucking
and
Com Products
does not provide a persuasive basis to depart from the statute’s plain meaning. Statutes often contain general terms that call for regulatory interpretation and reflect a decision by Congress to delegate implementation to a regulatory body.
See Nat’l Muffler Dealers Ass’n v. United States,
The subsequent reenactment of the statute since the issuance of the Revenue Ruling also does not provide the Ruling with the force of law. It is generally true that “Congress is presumed to be aware of an administrative or judicial interpretation of a statute and to adopt that interpretation when it re-enacts a statute without change.”
Lorillard v. Pons,
The reenactment doctrine, however, tends to be applied when there is reason, either based on the nature of regulatory interpretations or the context of the reenactment, to presume that Congress was aware of the interpretation that it was supposedly adopting. For example, in
Cleveland Indians Baseball,
the Supreme Court stated that reenactment supported deference for “an agency’s steady interpre
*180
tation of its own 61-year-old regulation implementing a 62-year-old statute.”
Id.
at 220,
Moreover, courts in a number of cases have expressly declined to apply the reenactment doctrine where evidence of congressional awareness was lacking. For example, in
Brown v. Gardner,
the Supreme Court rejected a reenactment doctrine argument with respect to a regulation by the Department of Veteran Affairs (the “VA”) because, among other reasons, “the record of congressional discussion preceding reen-actihent makes no reference to the VA regulation, and there is no other evidence to suggest that Congress was even aware of the VA’s interpretive position.”
Brown,
Other decisions confirm that subsequent reenactment is significant only where the context indicates that Congress was aware of the regulatory interpretation.
See N. Haven Bd. of Educ. v. Bell,
In this ease, the reenactment doctrine cannot alter the plain meaning of the statute, and, moreover, there is nothing to indicate the Congress adopted, tacitly or otherwise, the interpretation presented in Revenue Ruling 79-404. The Revenue Ruling was limited to the narrow issue of ship-to-shore communications, and there is no evidence that the Ruling was ever cited or applied between 1979 and the latest congressional reenactment in 1998.
See ABIC,
In sum, neither the Revenue Ruling itself nor the subsequent reenactment of the statute compels an interpretation of § 4252(b)(1) that is different from the provision’s plain meaning and directly expressed intent to tax long-distance service where the charges vary by both distance and time.
D.
In the alternative to advancing its interpretation of § 4252(b)(1), the Government argues that Fortis’s toll telephone service does vary by “distance” because rates may vary depending on whether the call is intrastate, interstate, or international. This alternative argument is also unpersuasive. Section 4252(b)(1) presumes a formula where the charge correlates to both the elapsed time of the call and the distance-that is, the mileage-that the call travels. As the plaintiff points out, tele *182 phone calls are designated according to geopolitical units due to the federalist regulatory scheme and the demarcation of jurisdiction between the Federal Communications Commission and state regulatory agencies. The distinctions between intrastate and interstate do not necessarily correlate to distance because, for example, an intrastate call may well travel a longer distance than certain interstate or even international calls.
For essentially these reasons, the
Office Max
court reached the same conclusion as this Court: the jurisdictional classifications employed in the long distance service at issue does not amount to service where charges vary in amount with distance and thus do not place the service within § 4252(b)(l)’s definition of toll telephone service.
See Office Max,
V.
The Government has also argued that, if the service does not fall within the definition in § 4252(b)(1), it can still be taxed as falling within other definitions of communications services: namely, the second definition of toll telephone service in § 4252(b)(2) or the definition of local telephone service in § 4252(a). Neither argument has merit.
A.
First, the Government argues that if the long-distance service at issue does not fall within the definition of § 4252(b)(1), then it must fall within the alternative definition of long-distance service in § 4252(b)(2), involving
a service which entitles the subscriber, upon payment of a periodic charge (determined as a flat amount or upon the basis of total elapsed transmission time), to the privilege of an unlimited number of telephonic communications to or from all or a substantial portion of the persons having telephone or radio telephone stations in a specified area which is outside the local telephone system area in which the station provided with this service is located.
26 U.S.C. § 4252(b)(2). The plaintiff argues that its service does not fit the above definition because it is not entitled to make an unlimited number of calls “upon payment of a periodic charge” based on a flat amount or the total elapsed transmission time for the period. Instead, the plaintiff pays a per-minute rate for each call placed. The Government argues that the plaintiff effectively pays a periodic charges for unlimited calls because each monthly bill is based on the sum of the elapsed time of the calls made multiplied by the rate.
The Government argues that it is irrelevant that the bill is determined by multiplying the duration of each call by the rate and then adding the calls, rather than adding the duration of all the calls and then multiplying by the rate. The Govern-mént argues that the periodic charge is still determined “upon the basis of total elapsed transmission time” in accordance with § 4252(b)(2). The Government, however, is incorrect in arguing that the method of calculation is irrelevant. As the plaintiff states, a per-call billing method contains a rounding formula where the duration of each call is multiplied by the rate, producing a charge that is then *183 rounded off to the nearest cent. (See Decl. of Stephen J. Rosen, dated Dec. 18, 2003, Ex. A (AT & T Business Service Guide describing rounding of charges).) Under a periodic-charge system based on total elapsed transmission time, each call is not individually assigned a cost. Thus, depending on the actual length of each call, two callers placing the same number of calls and using the same number of minutes at the same rate would not necessarily have the same monthly bill if one were charged according to a per-call plan while the other were charged according to a periodic-charge plan. Determining the periodic charge on a per-call basis is thus unlikely to produce the same charge as a billing system that charges based on the “total elapsed transmission time.”
In any event, even putting aside the issue of rounding formulas, the per-call charges in this ease do not fall within the statutory definition in § 4252(b)(2). The statutory scheme in § 4252(b) divides toll telephone service into two categories: subsection (b)(1) addresses charges for individual communications (that vary by distance and time) while subsection (b)(2) addresses services that involve periodic charges for the privilege of “an unlimited number of telephonic communications” to or from all or a substantial portion of the persons in a specified area whether the charge is based on a flat fee or total elapsed transmission time. Thus, the plain meaning of § 4252(b)(2)’s reference to a “periodic charge” is that the provision does not cover services that charge by the individual call.
See Office Max,
To the extent that the statute is ambiguous, the legislative history conclusively shows that § 4252(b)(2) was intended to cover “WATS (wide area telephone service). This is a long-distance service whereby, for a flat charge, the subscriber is entitled to make unlimited calls within a defined area (sometimes limited as to the maximum number of hours).” H.R.Rep. No. 89-433, 1965 U.S.C.C.A.N. at 1677. No one disputes that § 4252(b)(2) generally described the WATS service introduced by AT & T in 1961 and that the service at issue is not WATS service.
B.
The Government next argues that if Fortis’s service does not meet either definition of toll telephone service in § 4252(b), then it must be considered “local service” under § 4252(a), which provides in full:
(a) Local telephone service. — For purposes of this subchapter, the term “local telephone service” means—
(1) the access to a local telephone system, and the privilege of telephonic quality communication with substantially all persons having telephone or radio telephone stations constituting a part of such local telephone system, and
(2) any facility or service provided in connection with a service described in paragraph (1).
The term “local telephone service” does not include any service which is a “toll telephone service” or a “private communication service” as defined in subsections (b) and (d).
26 U.S.C. § 4252(a). The Government argues that because the term “local” is a broad term not defined in the statute, and because Congress allegedly intended to tax all telephone service, the plaintiffs service should be construed as “local telephone service” if it does not fall within any other definition. The Government contends that the “plain” meaning of “local” area could be considered the entire United States.
*184
The Government’s argument is without merit. It is hardly a plain or natural reading of the statute to claim that the entire United States is part of one “local telephone system.” Words are to be construed, unless the context indicate otherwise, according to their ordinary and common meaning, and neither the term “local” nor “local telephone service” is consistent with nationwide service.
See Edelman,
The rejection of the Government’s asserted “plain” meaning arguments with respect to 26 U.S.C. §§ 4252(a) and (b)(2) is not inconsistent with this Court’s interpretation of § 4252(b)(1) above. The Court’s construction of § 4252(b)(1) is based on the common and ordinary meaning of the language in that section as contrasted to the Government’s reading which would ask the Court to ignore what Congress actually provided. The Court’s statutory construction is consistent with the structure of the statute and its historical context. The context of the 1965 amendments confirms that the words employed by Congress mean precisely what they, on their face, appear to mean. The Court is not enforcing the terms of the statute in spite of Congress’s intent; the Court is enforcing the specific intent of Congress to tax the service that it expressly described and clearly intended to tax, rather than rewriting the statute to comport with a generalized notion of what Congress might intend if it were to revise the statute in light of subsequent innovations in the industry.
VI.
Finally, the Government raises the narrow and separate issue of whether Fortis’s inbound 800 service is taxable WATS service under 26 U.S.C. § 4252(b)(2). The Government relies almost entirely on Fortis’s service falling under an AT & T Tariff entitled “Wide Area Telecommunications Services.” Fortis argues that its services are in fact labeled “800 READYLINE” and “MEGACOM 800” service, and, in any event, involve charges that are assessed per call and do not fit within § 4252(b)(2).
The mere labeling of Fortis’s service as WATS does not necessarily mean that it is covered by § 4252(b)(2). Section 4252(b)(2) was enacted to cover the AT & T WATS service then in existence, and historically, inbound 800 services have been described as inbound WATS. But the issue is whether the service falls within the definition in § 4252(b)(2) by involving a periodic charge, based on a flat rate or total elapsed transmission time, for unlimited calls to a specified area.
The plaintiff has stated that its inbound 800 service involves per-call charges, but that is not clear from the record. The Contract Tariffs indicate that the AT & T MEGACOM 800 and AT & T 800 READY-LINE service for Canada do involve per-call charges. (See, e.g., Contract Tariff *185 No. 10725 §§ 7.C.1, 7.D.1, attached at PL Ex. 3) For the reasons explained earlier, such charges would not fall within the periodic-charge requirement of § 4252(b)(2). The Contract Tariffs, however, indicate that the MEGACOM 800 and 800 READYLINE domestic services are charged “per hour of use.” (See, e.g., id. § 7.B.) That suggests that charges are based on total elapsed transmission time for the billing period, which could place the service within § 4252(b)(2). Because the Government failed to make this argument and neither party sufficiently described the service at issue, and because there are issues of fact as to the billing rates for this service, neither party is entitled to summary judgment on the narrow issue of the right to a refund for the inbound 800 services.
Conclusion
The plaintiffs motion for summary judgment on liability is granted and the defendant’s cross-motion for summary judgment is denied, except with respect to the limited issue of whether the plaintiffs inbound 800 service is taxable under § 4252(b)(2). As to that issue, both the motion and cross-motion are denied.
SO ORDERED.
Notes
. The Government, in its Rule 56.1(b) Statement, raised objections to certain of Fortis's asserted facts based on Fortis’s alleged failure to cite admissible evidence in accordance with Local Civil Rule 56.1(d) and the need for further discovery pursuant to Fed. R. Civ. 56(1). The Government, however, never attempted to argue why any of the cited evi *169 dence was improper, nor did it submit an affidavit identifying additional discovery necessary to respond to the motion. In any event, the parties agree that the underlying facts are generally not in dispute and that the motions revolve around the purely legal issue of statutory interpretation.
. See Decl. of Paul Vasington ("Vasington Decl.”), dated Nov. 17, 2003, at 5-7, attached as Ex. B. to Decl. of Benjamin H. Torrance, dated Dec. 6, 2003 ("Torrance Decl.”).
. See Internal Revenue Code of 1954, Pub L. No. 83-591, ch. 33B, 68A Stat. 503-04; Excise Tax Technical Corrections Act of 1958, Pub.L. No. 85-859, § 133, 72 Stat. 1275, 1289-90.
.
ABIG,
which was decided on January 29, 2004, is now on appeal before the Court of Appeals for the Eleventh Circuit,
. The ship-to-shore communications involved relaying calls from ship radio stations through a satellite and then connecting them into the United States' regular long-distance telephone system.
See
Rev. Rui. 79-404,
. For example, Webster's Third New International Dictionary 80 (1993) notes that "and” can be "used as a function word to express ... (6) reference to either or both of two alternatives <choose between him"me> esp. in legal language when also plainly intended to mean or cbequeathed to a person "her bodily issue> <property taxable for state "county purposes >
. In contrast, in
Peacock
v.
Lubbock Compress, Co.,
. The phase-out rates and phase-out periods for the federal excise tax ("FET”) on communications services were continually adjusted by subsequent legislation.
(See
Vasington Decl. at 7-8);
see also Trans-Lux,
. An additional purpose not relevant to this case was the repeal of the excise tax on telegraph service and wire and equipment service.
See Office Max,
. The corresponding Senate Report is virtually identical in all relevant respects to the House Report. See S.Rep. No. 89-324, 1965 U.S.C.C.A.N. 1690, 1725.
. The Government also cites to recommendations made by the Executive Branch for the enactment of the 1965 amendments. See House Comm, on Ways and Means, 89th Cong., Materials Prepared by the Executive Branch Concerning Recommendations Proposed by the President Relative to the Excise and Fuel Taxes Including Draft Bills and Section-by-Section Analysis (Comm. Print May 17, 1965) ("Executive Branch Materials" or the "Materials”). In addressing § 4252(b)(1), the Executive Branch Materials recited word-for-word the language of the statute, and then added: "This definition is basically the same as present law except for clarifying changes.” Id. at 21. The Materials support the undisputed point that § 4252(b)(1) was intended to cover all per-call long-distance service. But the key issue is the import of the "clarifying changes,” and for the reasons stated in the text, it is difficult to argue that the specific definition in the current version of § 4252(b)(1) is the same as the very broad definition in the prior version.
. This case thus is not analogous to
Slodov v. United States,
The Court rejected that argument because such a result was "obviously at odds with the statute's purpose to assure payment of withheld taxes.”
Id.
at 248,
. The Revenue Ruling also cites
Com Products
for the proposition that a court should not follow the literal terms of a statute “as to defeat rather than further the purpose of Congress.” Cor
n. Products,
Com Products,
like
American Trucking,
can be understood as involving traditional canons of statutory construction, rather than as applying a broad principle of rejecting a statute's plain meaning in favor of its purpose. In any event, case law clearly indicates that a statute's plain meaning should only be disregarded upon "the most extraordinary showing of contrary intentions.”
See Luden,
. The IRS has recently proposed a Treasury Regulation that would provide in full: "For a communications service to constitute toll telephone service described in section 4252(b)(1), the charge for the service need not vary with the distance of each individual communication.” Prop. Treas. Reg. § 49.4252-0, 68 Fed Reg. 15690 (Apr. 1, 2003), attached at PL Ex. 15. The proposed regulation would thus formally adopt the decision of Revenue Ruling 79-404, but it has not yet been enacted and does not affect the deference owed to the IRS's construction of the statute.
.
Cottage Savings
also involved a treasury regulation, which was implemented in 1934 and required a "disposition of property” under 26 U.S.C. § 1001(a) to involve the exchange of "materially different” properties to constitute a realization event.
See Cottage Sav. Assn,
. Another example is
Bob Jones Univ. v. United States,
. In
Ashland Oil, Inc. v. Commissioner, 95
T.C. 348,