# Washington v. Commissioner

> United States Tax Court · September 17, 1981 · 77 T.C. 601

URL: https://www.frixlaw.com/law-library/cases/4484552

## Case

- **Full name:** Alexander Washington v. Commissioner of Internal Revenue
- **Court:** United States Tax Court
- **Decided:** September 17, 1981
- **Citations:** 77 T.C. 601; 1981 U.S. Tax Ct. LEXIS 60
- **Precedential status:** Published
- **Opinion:** Dissent by Fay
- **Judges:** Dawson,Caldwell,Fay,Nims,Sterrett,Nims,Ekman,Tannenwald,Irwin,Nims
- **Cited by:** 12 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/4484552

## Opinion text

Fay, J, dissenting: I respectfully dissent. In my view, a husband' and wife are not required to maintain separate physical residences in order to be "separated.”
Section 71(a)(3) requires a wife to be "separated” from her husband. See sec. 7701(a)(17). Section 1.71-l(b)(3), Income Tax Regs., requires a wife and husband to be "separated and living apart.” (Emphasis added.) At first blush, it seems that the regulation adds a requirement that simply is not in the statute and, therefore, is invalid to that extent. However, two considerations compel me to conclude that declaring section 1.71-1(b)(3), Income Tax Regs., invalid is not the proper action.
First, the legislative history indicates that Congress thought "living apart” was part of "separated.” See S. Rept. 1622, 83d Cong., 2d Sess. 10 (1954); H. Rept. 1337, 83d Cong., 2d Sess. 9-10 (1954). While it is axiomatic that the statute and not its history is the law, that history should not be ignored needlessly. Secondly, regulations should be read so as to be valid, and the regulation at issue herein can be read in just such a way. I agree with the Eighth Circuit Court of Appeals that a wife and husband can live apart, and thus separately, in the same residence. Sydnes v. Commissioner, 577 F.2d 60 (8th Cir. 1978), revg. 68 T.C. 170 (1977). Surely, two persons living on separate floors of the same house are living as separate and apart as two persons occupying adjacent apartments.
Basically, the majority opinion, citing Sydnes v. Commissioner, 68 T.C. 170, 175-176 (1977), gives two reasons for its result: (1) Duplicate living expenses are present only when separate residences are maintained, and (2) this Court should not be required to "delve into” intimate questions. I find neither reason convincing.
I fail to see how duplicated living expenses are required under section 71. In fact, one reading of section 71(a)(1) dispels any notion that they are. If a couple is actually divorced, there is absolutely nothing in either the statute or the regulations that would deny the payor spouse an otherwise allowable alimony deduction if the divorced parties shared a residence. Should not the same rule apply for "separated” persons? As to the second reason given in the majority opinion, suffice it to say that I cannot agree that what is convenient for us should in any way interfere with our decisions as to the law.
For the above reasons, I would overrule our decision in Sydnes and adopt the approach of the appellate court.
Wilbur and Nims:, JJ., agree with this dissenting opinion.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/4484552. Public record. Not legal advice.