I don't have a definitive answer either - this discussion is purely academic.  What is evident is that this is not high on the Congress' or IRS' agenda.  The Congress and IRS both had ample opportunities but both failed to provide clarity on the subject matter.

If it is determined that there is a reasonable basis for taking a position, it will generally also mean a F.8275 disclosure would be necessary (although I recall reading somewhere that a more aggressive position to not disclose may be taken where there is simple no legislative guidance at all but I am not certain if this is one of those cases).

I would, however, be cautious, IMHO, in adopting different positions on different taxpayer's returns (or even the same taxpayer's return in different years).