The opinion
IRWIN, J., dissenting: I disagree with the majority as to the quantum of proof Congress intended to require by the phrase “clearly establish” which is used for the first time in the Internal Revenue Code of 1954 in section 152 (e) (2) (B) (ii).
The majority holds that a “clear preponderance” of the evidence was intended. I would hold that “clear and convincing” evidence was intended.
In identical language the House 'and Senate committee reports, in referring to section 152 (e) (2) (B) (ii), state:
the parent having custody remains entitled to the deduction with respect to a particular child, if he establishes that ho, in fact, furnished a greater portion of that child’s support than did the parent not having custody, but only if he establishes this fact by olear and convincing evidence. [Emphasis supplied.]
The majority, although noting this language and despite the fact that petitioner urged this standard of proof, succumbs to temptation and substitutes its judgment for what it thinks Congress meant rather than accepting what Congress clearly and unequivocally stated it meant.
In the words of the Supreme Court, “In the interpretation of statutes, the function of the courts is easily stated. It is to construe the language so as to give effect to the intent of Congress.” United States v. Amer. Trucking Ass’ns., 310 U.S. 534, 542 (1940). See also Commissioner v. Bilder, 369 U.S. 499 (1962); Board v. Hearst Publications, 322 U.S. 111 (1944); Harrison v. Northern Trust Co., 317 U.S. 476 (1943).
In this case the majority completely oversteps the bounds of this function. Its excuse is that to accept the meaning Congress gives to the words “clearly establish” would result in a construction which would be impracticable and at variance with the general policy of the statute as a whole. It also expresses concern that the parent with custody would have a very difficult burden. After all is said and done, the majority concludes that “It seems highly unlikely that Congress could have intended to impose upon respondent (and indirectly upon the parent having custody) a stringent and extraordinary burden.” It apparently does not quarrel over whether or not “clearly establish” is subject to more than one interpretation, although it does hold that the common import of the words “clearly establish” requires only a clear preponderance of the evidence.
While it is tempting to let equitable considerations guide us in construing statutory language the Supreme Court has stated:
tbe equitable considerations wbicb the * * * [taxpayer] brings to bear in support of her construction * * * are of course beside the point in this Court, since we must give the statute effect in accordance with the purpose so clearly manifested by Congress. [Commissioner v. Bilder, supra at 504 fn. 5.]
I agree with the majority that Congress, in enacting section 152(e), was hoping to facilitate the settlement of cases such as this one at the administrative level. Congress fully understood the fact that the parent with custody of the children was in a far better position to furnish information as to the total support of the children. With this in mind, in my opinion, Congress deliberately and consciously imposed a heavy burden of proof on such parent.
This is a case of first impression under section 152(e) (2) (B) and without any experience as to the operation of the burden of proof requirements as set forth by Congress the majority would have us violate the clear mandate of Congress. Since Congress has imposed the standard of proof requiring a clear preponderance of the evidence in sections 357(b) (2) and 1551(a), we can infer that it was well aware of this standard when it wrote section 152 (e) (2) (B) and yet it defined the burden required therein in the committee reports as clear and convincing evidence.
It has been held that “clear 'and convincing” evidence is—
that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to he established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequwocal. [Emphasis supplied. Hobson v. Eaton, 399 F. 2d 781 , 784 fn. 2, (C.A. 6, 1968), certiorari denied 394 U.S. 928 (1969), quoting Cross v. Ledford, 161 Ohio St. 469 , 120 N.E. 2d 118 (1954).]
It would appear in light of the circumstances usually involved in cases requiring a determination of which divorced parent is entitled to dependency exemptions that the burden of proof Congress intended to require could well turn out to be practical and in consonance with the general policy of the statute as a whole.
In any event, if experience indicates that the requirement of “clear and convincing” evidence, which Congress states is meant by “clearly establish,” leads to harsh and unreasonable results, it is the prerogative and function of Congress, not of this Court, to redefine it.
FORRESTER, Scott, Fay, Sterrett, and Quealy, </</., agree with this dissent.