Petition for Writ of Certiorari — Knight v. Commissioner

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Supreme Court, u.S.

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94 320 auc 1 919%

No. 94- OFFIGE GF THE CLERK

Supreme Court of the Anited States

Term October 1994

Roger W. Knight, petitioner

Commissioner of Internal Revenue, respondent.

On Writ of Certiorari to the United States

Court of Appeals for the Ninth Circuit

PETITION FOR WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

Roger W. Knight, pro se

28945 11th PI. S.

Federal Way, Washington 98003

206-839-4107 home

206-294-2275 work

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I. Questions Presented For Review

A. Child support has never been considered a

purely economic matter. Is the tax treatment of child

support, 26 U.S.C. §152(e), subject to the ban on

irrebuttable presumptions and thus by its terms in

violation of the Fifth Amendment requirement for due

process of law?

B. Is 26 U.S.C. §152(e) a bill of attainder

prohibited by Article I Section 9 clause 3 of the

Constitution?

C. Do 26 U.S.C. §§71 and 215 deny equal

protection of the laws to parents who pay child

support by denying deductions for child support paid

while allowing deductions for alimony paid in

violation of the Fifth Amendment?

{

li. Table of Conte=

I. Questions Presented For Review “““... . . . |

Eh. > Rs, Siu. D2 sea eS

1. Tae Pas. wo eee ll

CV. - II oo els ne ec os ]

V. Statement of Grounds For

Jurisdiction of this Court............... l

VI. Laws Involved in this Case............ |

Vil. epee ce. . 5. a a eee cee. 7

VIII. Argument for the Allowance of the Writ... 8

A. Irrebuttable Presumption.......... 8

DB: . - k eS ee 16

C. Bae ees 20

D. Precedent Set, Review Urgent..... 22

CM. a i a ran cee 24

Ill. Table of Authorities

Table of Cases

Aptheker v. Secretary of State,(1964) 378

U.S. 500, 12 L. Ed. 2d. 992, 84S. Ct. 1659... p. 12

Audobon v. Shufeldt,(1901) 181 U.S. 575,

ee ee ee. ee ee p. 11

Barclay v. Barclay,(1900) 184 Ill. 375,

gk re er a oe ne ee p. Il

Bell v. Burnson,(1971) 402 U.S. 535,

22 8. TG. BB. Fe Bh SG Be eo tnescsesi p. 12

Calder v. Bull,(1798) 3 U.S. (3 Dall.) 386,

see Se ee We pp. 18, 19

Carrington v. Rash,(1965) 380 U.S. 89,

13 L. Ed. 24. 675, 85S. Ct. 775... 22... -s--

Cleveland Board of Education v. LaFleur,

(1974) 414 U. S. 632, 39 L. Ed. 2d. 52,

Or 99s Gy es EASES eee pp. 12, 13

xaig v. Boren,(1976) 429 U.S. 190,

50 L. Bts2d. 397, 97S. Ct. 451.....---. pp. 13, 14

Cummings Vv.

sseuri,(1867) 71 U.S

(4 Wall.) 277, 18 L. gS re nee p. 16

Eisenstadt v. Baird,(1972) 405 U.S. 438,

Ro fe) Mo. we 0a | Sr p. 20

Ex parte Garland,(1867) 71 US.

(4 Wall.) 333, 18 L. Ed. 366.......---- pp. 16, 17

Fuentes v. Shevin,(1972) 407 U.S. 67,

32 L. Ed. 2d. 556, 92 S. Ct. 1983 .........-. p. 12

Griswold v. Connecticut,(1965) 381 U.S. 497,

14 L. Ed. 2d. 510, 85 S.Ct. 1687........--- p. 20

Hampton v. Mow Sun Wong,(1976) 426 U.S.

88, 48 L. Ed. 2d. 495, 96 S. Ct. 1895... . pp. 13, 14

Head Money Cases,(1884) 112 U.S. 580,

9 LR © ey | pp. 15, 16

Heiner v. Donnan,(1932) 285 U.S. 312,

Ee ee Fee. Fe OA. Ooo... ss). .---- pp. 12, 13

Hoeper v. Tax Commission,(1931) 284

US. 206, 76 L. Ed. 248, 52 S. Ct. 358. . . pp. $2, 39

In re Cave,(1901) 26 Wash. 213,66 P.425...p. 11

Jimenez v. Weinberger,(1974) 417 U. S.

628, 41 L. Ed. 2d. 363, 94 S. Ct. eee... p. 13

Johnson v. Commissioner,(1978) 37 T.C.M. 189,

affd. w/o pub. op.(CA9 1980), 624 F. 2d. 192. p. 23

Jones v. Helms,(1981) 452 U.S. 412,

GF L.. Ba 20 De, eee ae Beet... ee. p. 10

Loving v. Virginia,(1967) 388 U.S. 1,

16 L. Be. 26: 1010, Oo 6.44 1617 i css... p. 21

Matthews v. Lucas,(1976) 427 U.S. 495,

49 L. Ed. 2d, 651, 963. Ct. 2755........ pp. 13, 14

Michael H. v. Gerald D.,(1989) 491 U. S.

110, 105 L. Ed. 2d. 91, 109 S. Ct. 2333... pp. 8, 10

Nixon v. Administrator of General Services,

(1977) 433 U.S. 425, 53 L. Ed. 2d. 867,

PE MR ee. Se Bed ia. p. 17

Owens y. Ivey,(1988)

Dae MTs MR oS SS IRS Le. pp. 17, 18

Planned Parenthood v. Casey,(1992)

120 L. Ed. 24. 674, 112 §: Ci 2791...... pp. 8, 20

P.O.P.S. v. Gardner,(CA9 1993)

PO Fo We er EA oe ds p. 22

Reed v. Reed,(1971) 404 U.S. 71,

30 LEG .dd. 225, $2 SX. 251. 2. « pp. 12, 13, 14

Rivera v. Minnich,(1987) 483 U.S. 574,

97 Ld: Saale PG. GON) 2... p. 18

Roe v. Wade,(1973) 410 U.S. 113,

33k, Ree. 807 oe ee, PO p. 20

Schlesinger v. Wisconsin,(1926) 270 U.S. 230,

FOL, Ba. 50 tM. ee a te ee p. 13

Shapiro v. Thompson,(1969) 394 U.S. 618,

Ab Ss RAR, A. GF is CBRE ko os os 04s p. 12

Skinner v. Oklahoma,(1942) 316 U.S. 535,

86 L. Ed. 1655, 62 S. Ct. 1820 pp.

Stanley v. Illinois,.1972) 405 U.S. 645,

31 L Ed. 26. 351, 92 S. CO Fae... pp. 71,

Sugarman v. Dougall,(1973) 413 U.S. 634,

37 L. Ed. 2d. 853, 93 S. Ct. 2842

Trimble v. Gordon,(1977) 430 U.S. 762,

52 L. Ed. 2d. 31, 97 S. Ct. 1459

United States v. Brown,(1965) 381 U.S.437,

14 L. Ed. 2d. 484, 85 S. Ct. 1707

United States v. Lovett,(1946) 328 U.S.303,

90 L. Ed. 1252, 66 S. Ct. 1073

United States Department of Agriculture

v. Murry, (1973) 413 U.S. 508,

37 L. Ed. 2d. 767, 93 S. Ct. 2832

Usery v. Turner Elkhorn Mining Co.,

(1976) 428 U.S. 1, 49 L. Ed. 2d. 752,

96 S. Ct. 2882

Vlandis v. Kline,(1973) 412 U.S. 441,

37 L. Ed. 2d. 63, 93 S. Ct. 2230

Weber v. Aetna Casualty & Surety Co.,

(1972) 406 U.S. 164, 31 L. Ed. 2d. 768,

92 S. Ct. 1400

Weinberger v. Salfi,.1975) 422 U.S. 749,

45 L. Ed. 2d. 522, 95 S. Ct. 2457

Wetmore v. Markoe,(1904) 196 US. 68,

49 L. Ed. 390, 25 S. Ct. 172

Zablocki v. Redhail,(1978) 434 U.S. 374,

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“el Bet oe ON Oe ae ee oe ae ge ee ee A oe oe

. See ao eS Se eS

Pp.

PP.

pp. 8,

10, 14

54 L. Ed. 2d. 618, 98 S. Ct. 673 . pp. 13,14,15,21,22

Table of Laws

Constitution of the United States

Article I Section 8 clause 1................ p. 15

Article I Section 9 Clause3.............. pp. 1, 1

Fifth Amendment............. pp. 1, 1, 2, 8, 9, 12

Ninth Amendment................. pp. 2, 9, 10

Fourteenth Amendment............... pp. 9, 12

Laws of the United States

I a a 5 dhe win a4 6 ccwaib pp. 19, 22

I, Ss cas va ee bala we pp. 1, 2,3, 22, 23

26 U.S.C. §152(e) .. . . pp. 1,4,5,6,11,15,16,19,20,23

F SiS fo. ar 4.3.6. 7.26, 29

Es. oa ous wy ok eure eae p.7

ee p.7

ns dese «unite ud oe ne we p. 8

Bs I ii oe veg os 6 o's eek a 0 p. 1

Laws of the State of Washington

i. P| ERS igaty a eee p. 19

Rules

Peete Coc Mle 36-3... wc eee. p. 23

Other Authorities

Federalist Papers

a a ee ae p. 9

NER aig teeta plnnetiite og naperniateaetn: p. 16

IV. Decision Below

The memorandum decision of the court of

appeals has not been noted at the time of this

printing. The Tax Court memorandum opinion is

published at 64 T.C.M. 1519.

V. Statement of Grou: |. For Jurisdiction of

this Court

The memorandum below was filed by the

court of appeals on June 24, 1994. This Petition for

Writ of Certiorari is presented within 90 days of the

memorandum decision. This Court has jurisdiction

to review this decision under 28 U.S.C. §1254(1).

VI. Laws Involved in this Case

Provisions of the United States Constitution

Article I Section 9 Clause 3

No Bill of Attainder or ex post facto Law

shall be passed.

Fifth Article of Amendment

No person shall be held to answer for a

capital, or otherwise infamous crime, unless on a

presentment or indictment of a Grand Jury except in

cases arising in the land or naval forces, or in the

Militia, when in actual service in time of War or

public danger; nor shall any person be subject for the

same offense to be twice put in jeopardy of life or

limb; nor shall be compelled in any criminal case to

be witness against himself, nor be deprived of life,

liberty, or property, without due process of law; nor

shall private property be taken for public use,

without just compensation.

Ninth Article of Amendment

The enumeration in the Constitution, of

certain rights, shall not be construed to deny or

disparage others retained by the people.

Laws of the United States

26 U.S.C. §71. Alimony’ and _ separate

maintenance payments

(a) General rule

Gross income includes amounts received as

alimony or separate maintenance payments.

(b) Alimony or separate maintenance payments

defined

For purposes of this section-

(1) In general

The term “alimony or separate maintenance

payment" means any payment in cash if-

(A) such payment is received by (or on behalf

of) a spouse under a divorce or separation

instrument,

(B) the divorce or separation instrument does

not designate such payment as a payment which is

not includible in gross income under this section and

not allowable as a deduction under section 215,

separated from his spouse under a decree of divorce

or of separate maintenance, the payee spouse and the

payor spouse are not members of the same

household at the time such payment is made, and

(D) there is no liability to make any such

payment for any period after the death of the payee

spouse and there is no liability to make any payment

(in cash or property) as a substitute for such

payments after the death of the payee spouse.

(2) Divorce or separation instrument

The term "divorce or separation instrument”

means-

(A) a decree of divorce or _ separate

maintenance or a written instrument incident to such

a decree,

(B) a written separation agreement, or

(A)) requiring a spouse to make payments for the

support or maintenance of the other spouse.

(1) In general

Subsection (a) shall not apply to that part of

any payment which the terms of the divorce or

separation instrument fix (in terms of an amount of

money or a part of the payment) as a sum which is

eae, |

payable for the support of children of the payor

spouse.

(2) Treatment of certain reductions related to

contingencies involving child

For the purposes of paragraph (1), if any

amount specified in the instrument will be reduced-

(a) on the happening of a contingency

specified in the instrument relating to a child (such

as attaining a specified age, marrying, dying, leaving

school, or a similar contingency), or

(B) at a time which can clearly be associated

with a contingency of a kind specified in

subparagraph (a),

an amount equal to the amount of such

reduction will be treated as an amount fixed as

payable for the support of children of the payor

spouse.

(3) Special rule where payment is less than

amount specified in instrument

For purposes of this subsection, if any

payment is less than the amount specified in the

instrument, then so much of such payment as does

not exceed the sum payable for support shall be

considered a payment for such support.

(d) Spouse

For purposes of this section, the term "spouse"

includes a former spouse.

26 U.S.C. §152 Exemptions for dependents

(e) Support test in case of child of divorced

parents, etc.

(1) Custodial parent gets exemption

Except as otherwise provided in this subsection if-

(A) a child (as defined in section 151(c)(3))

receives over half of his support during the calendar

year from his parents-

(i) who are divorced or legally separated

under a decree of divorce or separate maintenance,

(ii) who are separated under a written

separation agreement, or

(iii) who live apart at all times during the last

6 months of the calendar year, and

(B) such child is in the custody of one or both

of his parents for more than one-half of the calendar

year,

such child shall be treated, for purposes of

subsection (a), aS receiving over half of his support

during the calendar year from the parent having

custody for a greater portion of the calendar year

(hereinafter in this subsection referred to as the

“custodial parent’).

(2) Exception where custodial parent releases

claim to exemption for the year

A child of parents described in paragraph (1)

shall be treated as having received over half of his

support during a calendar year from the noncustodial

parent if-

(A) the custodial parent signs a written

declaration (in such manner and form as_ the

Secretary may by regulations prescribe) that such

custodial parent will not claim such child as a

dependent for any taxable year beginning in such

calendar year, and

(B) the noncustodial parent attaches such

written declaration to the noncustodial parent's

return for the taxable year beginning during such

calendar year.

26 U.S.C. §215 Alimony, etc., payments

(a) General rule

In the case of an individual, there shall be

allowed as a deduction an amount equal to the

alimony or s-parate maintenance payments paid

during such individual's taxable year.

(b) Alimony or separate maintenance payments

defined

For purposes of this section, the term

"alimony or separate maintenance payment” means

any alimony or separate maintenance payment (as

defined in section 71(b)) which is includible in the

gross income of the recipient under section 71.

The Secretary may prescribe regulations under

which-

(1) any individual receiving alimony or

separate maintenance payments is required to

furnish such individual's taxpayer identification

number to the individual making such payments, and

(2) the individual making such payments is

required to include such taxpayer identification

number on such individual's return for the taxable

year in which such payments are made.

(d) Coordination with section 682

No deduction shall be allowed under this

section with respect to payment if, by reason of

section 682 (relating to income of alimony trusts),

the amount thereof is not includible in such

individual's gross income.

VII. Statement of the Case

In 1990, after an automatic extension, Mr.

Knight filed his tax return for 1989.

On January 24, 1992, the Internal Revenue

Service served on Mr. Knight a Notice of Deficiency

for Tax Year 1989. This is authorized by 26 U.S.C.

§6212.

On March 2, 1992, Mr. Knight filed a Petition

for Redetermination with the Tax Court, No. 4755-

92. The Tax Court had jurisdiction under 26 U.S.C.

§6213(a).

On December 15, 1992, the Tax Court issued

a memorandum opinion, T.C. Memo. 1992-710, 64

T.C.M. 1519, App. pp. 8-23.

On October 18, 1993, the Tax Cour filed its

Decision, App. p. 7.

On November 8, 1993, Mr. Knight appealed

to the Ninth Circuit Court of Appeals, No. 93-70917.

The court of appeals had jurisdiction under 26

U.S.C. §7482(a).

On June 24, 1993, the court of appeals filed

the memorandum affirming the tax court’s decision.

App. pp. 1-6.

VIII. Argument for Allowance of the Writ

A. _ Irrebuttable Presumption, Due Process

The plain language of the Fifth Amendment

provides that no person shall be deprived of property

without due process of law. If a person is deprived

of property by a legislative presumption which is

irrebuttable or conclusive, this provision is violated.

The limitation of the irrebuttable presumption

doctrine in purely economic matters meets all of the

requirements for reversal defined by Justice

O’Conner in Planned Parenthood v. Casey,(1992)

120 L. Ed. 2d. 674, 112 S. Ct. 2791, 2814. The

decision must be obviously wrong and otherwise

there must be compelling reasons for reversal.

This is clearly the case with Michael H. v.

Gerald D.,(1989) 491 U.S. 110, 105 L. Ed. 2d. 91,

109 S. Ct. 2333; Usery v. Turner Elkhorn Mining

Co.,(1976) 428 U.S. 1, 49 L. Ed. 2d. 752, 96 S. Ct.

2882; and Weinberger v. Salfi,.1975) 422 U.S. 749,

45 L. Ed. 2d. 522, 95 S. Ct. 2457. Many people use

“original intent” to argue against protecting abortion

and other rights not enumerated in the Constitution.

This approach ignores two important factors: (1) the

Ninth Amendment provides for unenumerated rights

that can be included in the word “liberty” in both

Fifth and Fourteenth Amendments; and (2) The

“original intenders” = were not “staunch

conservatives” but a bunch of revolutionaries who

successfully fought tyranny.

They were unalterably opposed to government

arbitrarily taking any person’s life, liberty, or

property. That is why they prohibited bills of

attainder, ex post facto laws, laws that impair

contracts, excessive fines and bails, and the taking

of property without just compensation. The First

Congress clearly intended the requirement for due

process to support all of these other constitutional

protections of property.

The Federalist Papers, Nos. 30-36 argued that

the power to lay and collect taxes is a necessity. But

they promised that this power was checked by the

requirement for uniformity to provide for the fair and

orderly raising of revenue and to avoid plundering

by government to meet its needs. Federalist Paper

35 warned specifically against the evil of unequal

taxation among the states and among the citizens of

each State.

The greatest objection to the Constitution that

Alexander Hamilton had to overcome was the

reasonable fear of the awesome power of taxation.

The second objection was the lack of a bill of rights,

to protect against that taxing and other powers of the

proposed federal government. The power to tax is

thus clearly checked and regulated by Article |

Section 9 and by the Bill of Rights as_ these

measures were enacted to specifically meet these

objections.

Therefore, for this Court to define marriage,

procreation, and abortion to be fundamental rights

protected by the Ninth Amendment and by

substantive due process is not inconsistent with the

original intent. But to abandon the prohibition of

irrebuttable presumptions is contrary to original

intent.

While this Court can use this case to reverse

Michael H., Turner Elkhorn, and Salfi, it does not

need to in order to reverse the Ninth Circuit’s

dangerous tendency to find that every irrebuttable

presumption that affects property is a purely

economic matter. Anything that adversely affects

the noncustodial parent will make his compliance

with a support order LESS likeiy. Child support is

NOT a purely economic matter.

It is enforced to promote the compelling

interest government has in the support of its children

as found by this Court in Jones v. Helms,(1981) 452

U.S. 412, 423, 69 L. Ed. 2d. 118, 101 S. Ct. 2434.

Child support was once considered an element of

alimony, the distinction being a 20th century

invention. Prior to the rise of no fault divorce laws

and the decisions of this Court that marriage and

procreation are fundamental rights, alimony was

considered not founded upon a contract, but to be a

penalty imposed for failure to perform a duty.

Barclay v. Barclay,(1900) 184 Ill. 375, 56 N.E. 636,

637 cited in Audobon vy. Shufeldt,1901) 181 U.S.

575, 579, 45 L. Ed. 1009, 21 S. Ct. 735; Wetmore v.

Markoe,(1904) 196 U.S. 68, 73, 49 L. Ed. 390, 25 S.

Ct. 172; and In re Cave,(1901) 26 Wash. 213, 216,

66 P. 425.

If a support order is a penalty and therefore

not dischargeable through bankruptcy and support

debtors are not protected by state constitutions that

prohibit imprisonment for debt; then the irrebuttable

presumption doctrine must apply. If child support is

deemed an obligation that attaches to the exercise of

the fundamental right to procreate, then an

irrebuttable presumption in the tax laws that said

parent did not support the child, which further

burdens the parent financially, making compliance

with a support order less likely is not a purely

economic matter in that it affects a fundamental

right. This places the conclusive presumption of 26

U.S.C. §152(e) squarely in the mold of Stanley v.

Illinois,(1972) 405 U.S. 546, 31 L. Ed. 2d. 551, 92

S. Ct. 1208 and Vlandis v. Kline,1973) 412 US.

441, 37 L. Ed. 2d. 63, 93 S. Ct. 2230.

Viandis did involve an economic matter, out

of state versus in state tuition rates. But it also

involved the constitutional right to travel and the

issue of opportunity to education. Equating a case

involving a conclusive presumption in a purely

economic matter with cases in the mold of Stanley

and Viandis is found to be in error in Turner Elkhorn

at 428 U.S. 22.

Heiner v. Donnan,(1932) 285 U.S. 312, 324-

329, 76 L. Ed. 772, 52 S. Ct. 358 is the classic

decision establishing that irrebuttable presumptions

are void as contrary to the requirement for due

process of law and that the Fifth and Fourteenth

Amendments provide identical protections as to due

process.

Heiner, Hoeper v. Tax Commission,(1931)

284 U.S. 206, 76 L. Ed. 248, 52 S. Ct. 120 and their

progeny: Skinner v. Oklahoma,(1942) 316 U.S. 535,

544, 86 L. Ed. 1655, 62 S. Ct. 1820; Aptheker v.

Secretary of State,1964) 378 U.S. 500, 511, 12 L.

Ed. 2d. 992, 84 S. Ct. 1659; Carrington v. Rash,

(1965) 380 U. S. 89, 96, 13 L. Ed. 2d. 675, 85 S. Ct.

775; Shapiro v. Thompson,(1969) 394 U.S. 618,

631, 22 L. Ed. 2d. 600, 89 S. Ct. 1322; Bell v.

Burnson,(1971) 402 U.S. 535, 29 L. Ed. 2d. 90, 91

S. Ct. 1586; Reed v. Reed,(1971) 404 U.S. 71, 76, 30

L. Ed. 2d. 225, 92 S. Ct. 251; Weber v. Aetna

Casualty & Surety Co., (1972) 406 U.S. 164, 31 L.

Ed. 2d. 768, 92 S. Ct. 1400; Fuentes v.

Shevin,(1972) 407 U.S. 67, 92-93 note 29, 32 L. Ed.

2d. 556, 92 S. Ct. 1983; United States Department of

Agriculture v. Murry,(1973) 413 U.S. 508, 37 L. Ed.

2a. Wi, 93 S. Ci. 2832; Sugarman vv.

Dougall,(1973) 413 U.S. 634, 646-647, 37 L. Ed.

2d. 853, 93 S. Ct. 2842; Cleveland Board of

Education v. LaFleur, (1974) 414 U.S. 632, 39 L.

i 26 $2, MM F Ck UTP 6 eee. ¢.

Weinberger,(1974) 417 U.S. 628, 636, 41 L. Ed. 2d.

363, 94 S. Ct. 2496; Hampton v. Mow Sun

Wong,(1976) 426 U.S. 88, 101 note 20, 48 L. Ed. 2d.

495, 96 S. Ct. 1895; Matthews v. Lucas,(1976) 427

U.S. 495, 49 L. Ed. 2d. 651, 96 S. Ct. 2755; Craig v.

Boren,(1976) 429 U.S. 190, 50 L. Ed. 2d. 397, 97 S.

Ct. 451; and Trimble v. Gordan,(1977) 430 U.S. 762,

770-771, 52 L. 2d. 31, 97 S. Ct. 1459 apply the

irrebuttable presumption doctrine to a variety of

situations that arise under law.

Particularly relevant to the issue of whether

the irrebuttable presumption doctrine applies to the

tax treatment of child support are Schlesinger v.

Wisconsin,(1926) 270 U.S. 230, 240, 70 L. Ed. 557,

46 S. Ct. 260 and Heiner, taxes imposed upon

property transferred from the parent to the child

prior to death of the parent; Hoeper, state income tax

on wife’s separate property payable by husband;

Reed, gender preference in the administration of an

estate of a deceased child; Stanley, fitness of an

unwed father as parent; Weber, Jimenez, and

Matthews, dependence of illegitimate child on

deceased father for determining insurance benefits;

Murry, food stamp eligibility of household that

included a 19 year old receiving child support;

Trimble, inheritance by intestate succession by

illegitimate children; and Zablocki v. Redhail, (1978)

434 U.S. 374, 390, 402-403, 405-406, 54 L. Ed. 2d.

618, 98 S. Ct. 673: presumption that marriage will

reduce ability to comply with a support order is

found to be constitutionally defective.

Matthews, Trimble, Zablocki, Mow Sun Wong,

and Craig were decided after Salfi and either

contemporary or subsequently to Turner Elkhorn.

Mow Sun Wong involved civil service employment

by resident aliens and Craig involved gender

distinction in setting the legal drinking age. The

irrebuttable presumption doctrine has not been

abandoned or even as severely limited as found by

the court of appeals.

The finding by the court of appeals and the

Tax Court that Congress had a legitimate interest in

relieving the Internal Revenue Service of the burden

of arbitrating disputes between parents as to which

parent provided more than one half of the child's

support, App pp. 4, 16-17, is in direct conflict with

Reed at 404 U.S. 76 and Stanley at 405 U.S. 656-

657. Furthermore, it ignores the less drastic means

that Congress had in treating child support the same

as alimony. The Internal Revenue Service would

not have to serve as an arbitrator if Congress did not

set up the dispute in the first place. If the custodial

parent has to include child support actually received

as gross income, then of course she should be

entitled to the exemption for each child thus

supported. And as an added bonus, it would grant a

positive incentive for the noncustodial parent to pay

child support. If the support of children justifies

contempt proceedings, then why not a tax deduction

for all support actually paid?

Less drastic means test such as this is applied

throughout Zablocki, supra.

While not mentioned in the decisions below,

the federal government has argued that Mr. Knight

can seek in state court an order requiring his ex-wife

to sign over the personal exemptions for his children

and to enforce such order with civil contempt

proceedings. Mr. Knight replied that his ex-wife

need only to remain in jail until April 16 to defeat

such a strategy.

But Congress did not authorize in 26 U.S.C.

§152(e) any such remedy by state courts. State

courts certainly cannot enjoin the collection of

federal taxes or order any refund of federal taxes

collected, as the United States has not consented to

such liability. For a state court to instruct any

citizen on how to prepare her federal tax papers may

be in direct conflict with §152(e) and _ the

Constitution. Congress cannot delegate to the

States, nor can the states usurp, the authority to

interpret federal tax law and determine who owes

what tax, without violating the requirement for

uniformity in Article I Section 8 clause 1! A tax

cannot operate with the same force an effect in every

place where the subject of it is found if each state

has the power to interpret it. See Head Money

Cases,(1884) 112 U.S. 580, 594, 28 L. Ed. 798, 5 S.

Ct. 247. The purpose of replacing the Articles of

Confederation with the Constitution is to free the

federal government from dependence on the states

for revenue and to free the states from obligation to

collect the revenue for the federal government.

Mr. Knight is thus faced with an irrebuttable

presumption in 26 U.S.C. §152(e) that deprives him

of his property and renders more difficult his

compliance with a support order. A writ of certiorari

is therefore indicated.

B. _ Bill of Attainder

Bills of attainder, ex post facto laws,

and laws impairing the obligations of

contracts, are contrary to the first principles of

the social compact and to every principle to

sound government.

Federalist Paper No. 44

Who can doubt the wisdom of Alexander

Hamilton? Jim Crow laws, the internment of

persons of Japanese ancestry, and the ban on

homosexuals in the military can all be reasonably

challenged as bills of attainder.

The four laws held by this Court to be bills of

attainder included _ irrebuttable presumptions.

Cummings v. Missouri, (1867) 71 U.S.(4 Wall.) 277,

18 L. Ed. 356 invalidated the irrebuttable

presumption that those who aided the Confederate

States were not fit to practice certain professions,

including clergyman. Ex parte Garland,(1867) 71

U.S.(4 Wall.) 333, 18 L. Ed. 366 invalidated the

irrebuttable presumption that those who aided the

Confederate States were not fit to practice law

before the courts of the United States. United States

v. Lovett,(1946) 328 U.S. 303, 90 L. Ed. 1252, 66 S.

Ct. 1073 invalidated the irrebuttable presumption

that three named individuals were subversives.

United States v. Brown,(1965) 381 U.S. 437, 14 L.

Ed. 2d. 484, 85 S. Ct. 1707 invalidated the

irrebuttable presumption that members of the

Communist Party posed a risk of political strikes if

allowed to be officers or employees of labor unions.

A state court found invalid as a bill of

attainder a law that imposed liability for actions of a

chile upon the parent solely on the basis of the

parent and child relationship. Involved was the

irrebuttable presumption that the custodial parent

contributed to the objectionable behavior of the

child. Owens v. Ivey,(1988) 525 N.Y.S. 2d. 508,

515-516. At 515 it cites Nixon v. Administrator of

General Services, (1977) 433 U.S. 425, 475-480, 53

L. Ed. 2d. 867, 97 S. Ct. 2777 in its analysis of

whether the statutory sanction is punishment for the

purpose of bill of attainder analysis.

Owens boiled the Nixon tests for punishment

down to:

x Whether the law _ requires _ traditionally

recognized punishments.

a Whether it furthered punitive purposes

generally.

3 Whether legislature intended to punish.

Judge John Manning Regan held the New

York law unconstitutional as a bill of attainder

because it provided a minimum monetary penalty to

be paid by the parent, solely on the basis of the

parent and child relationship. Such corruption of

blood is a historical dimension of bill of attainder.

Owens, supra at 515-516.

Child support statutes in their present form

clearly meet these tests, if they constitute a form of

punishment or are used to serve punitive purposes.

They irrebuttably impose what Justice Brennan

found in Rivera v. Minnich,(1987) 4283 U.S. 574,

583-586, 97 L. Ed. 2d. 473, 107 S. Ct. 3001 to be an

onerous burden. They take property from A and

give it to B, which Justice Chase found to be beyond

the authority of the legislature in Calder v.

Bull,1798) 3 U.S.(3 Dall.) 386, 388, 1 L. Ed. 648.

As already shown, denying discharge through

bankruptcy of support debt and denying support

debtors the protection of state constitutions that

prohibit imprisonment for debt is justified on the

grounds that support is a PENALTY. Either it is or

it is not. If it is, then child support statutes, or at

least those provisions that give it punitive effect, are

bills of attainder. No bill of attainder can by its

legislative judgment provide any rational basis for

Statute or any compelling interest of government; it

is the legislative judgment that is forbidden.

The question for this Court to answer is: does

26 U.S.C. §152(€) serve or exacerbate punitive

purpose? Can it be rationally related to any

nonpunitive purpose? Its denial of the personal

exemption to those who pay child support is based

upon a legislative judgment that they do not provide

more than one half of the support of their children

unless the custodial parent so declares. This makes

her a judge in her own cause, which is also beyond

the authority of the legislature, Calder, supra at 3

U.S. 388.

As already argued, 26 U.S.C. §152(e) denies

any recourse to the noncustodial parent when the

custodial parent refuses to sign over the exemption,

even in violation of a state court order. Such state

court order which may be unconstitutional.

If a noncustodial parent refuses to comply

with a support order, he can be punished for

contempt under Washington’s RCW 26.18.050 and

similar laws in other states. If he crosses state lines,

he can be prosecuted for the crime defined by 18

U.S.C. §228. 26 U.S.C. §152(e) irrebuttably

presumes that all noncustodial parents unable to get

the custodial parents to testify otherwise, are guilty

of nonpayment of support. This is something

Congress and the states have deemed worthy of

punishment. The tax punishes by deprivation of

property, which is a historical punishment of bills of

attainder and bills of pains and penalties. Denying

the noncustodial parent the personal exemption for

) -

supporting his children while forcing him to pay

taxes on the money he earns to pay the support is

certainly not rationally related to any nonpunitive

purpose of securing the support of the child.

26 U.S.C. §152(e) is a legislative act.

Noncustodial parents who pay child support

are easily ascertainable members of a group of

persons.

26 U.S.C. §152(e) inflicts punishment by

deprivation of property for nonpayment of support

without any judicial trial.

In Lovett, supra at 328 U.S. 315 and in

Brown, supra at 381 U.S. 448-449, this Court

defined bills of attainder to include:

Legislative acts, no matter what their

form, that apply either to named individuals or

to easily ascertainable members of a group in

such a way as to inflict punishment on them

without judicial trial.

A writ of certiorari is thus indicated.

C. Equal Protection

In Planned Parenthood, supra, this Court

reaffirmed the findings in Roe v. Wade, (1973) 410

U.S. 113, 35 Lc BR Mt 147, SD SD Ch. CR,

Eisenstadt v. Baird,1972) 405 U.S. 438, 31 L. Ed.

2d. 147, 93 S. Ct. 705; and Griswold v.

Connecticut,(1965) 381 U.S. 497, 14 L. Ed. 2d. 510,

85 S. Ct. 1687 that choice in abortion and birth

control are fundamental rights. protected by

substantive due process. The right to procreate is

also a fundamental right in Skinner v. Okiahoma,

(1942) 316 U.S. 535, 86 L. Ed. 1655, 62 S. Ct. 1820.

That it exists in men and women, that a woman has

as much right to carry her child to term and to marry

the child’s father as to abort is eloquently declared

by this Court in Zablocki, supra at 434 U.S. 384-

386. Zablocki and Loving v. Virginia,(1967) 388

U.S. 1, 18 L. Ed. 2d. 1010, 85 S. Ct. 1817

recognized marriage to be a fundamental right.

Freedom of choice in procreation and in

marriage are closely related and each is dependent of

the existence of the other. There is no rational basis

for any distinction between marriage and procreation

as to rights and duties. Alimony is a duty imposed

for having married, child support for having

procreated. Both serve the purpose of providing for

the parties less able to provide for themselves. The

denial of the protection of state constitutions that

prohibit imprisonment for debt and_ of

dischargeability through bankruptcy is applied to

both alimony and child support without distinction.

The lower courts’ findings that child support

and alimony serve different purposes is in error to

the extent that the distinction is usually blurred in

practice. The standard of living of the child cannot

be separated from the standard of living of the parent

with whom the child is residing. The Ninth Circuit

upheld a Washington law that increased child

support obligations for the purpose of standard of

living in P.O.P.S. v. Gardner, (CA9 1993) 998 F.

2d. 764, 767. Furthermore, 18 U.S.C. §228 provides

that refusing to pay support ordered for a child out of

state and for the parent with custody of that child is

a crime.

The only place in the law that treats alimony

differently than child support is at 26 U.S.C. §§71

and 215. There is no rational basis for this

distinction. The Tax Code gives a substantial

positive incentive for the payment of alimony: full

deduction of all alimony actually paid. But it denies

noncustodial parents this same incentive. Forcing

these parents to pay taxes on income they earn to

pay support causes many to be both unable and

unwilling to pay child support.

Fundamental rights are clearly involved here

and the court of appeals’ refusal to apply the strict

scrutiny standard is in direct contradiction to

Zablocki v. Redhail.

No rational basis can possibly exist for

encouraging the payment of alimony and for

discouraging the payment of child support. The

Statutes in question and the decisions below are

patently irrational.

A writ of certiorari is therefore indicated.

D. Precedent is Set, Review is Urgent

The Tax Court memorandum opinion at 64

T.C.M. 1519 sets a precedent that it can cite against

other noncustodial parents who make the same

challenge. Tax Court jurisdiction exists only upon

the issuance of a notice of deficiency. A taxpayer’s

only other recourse is a refund suit in the Claims

Court or the local district court. Because of the huge

obligations imposed upon noncustodial parents,

paying the taxes due on the income they earn to pay

support to set up a refund suit is problematical.

Ninth Circuit Rule 36-3 provides that

unpublished decisions shall not be cited as

precedent, but the Tax Court cites its opinions

affirmed by unpublished decision. App. p. 19 for

citation of Johnson v. Commissioner, T.C. Memo

1978-32, 37 T.C.M. 189, noted as affirmed on 624

F, 2d. 192. While this case sets up half of any

Circuit split in these issues, it may be a long time

before a circuit other than the Ninth disagrees.

Meanwhile, noncustodial parents will continue to

fail or refuse to comply with their support orders in

part because of 26 U.S.C. §§71, 152(e), and 215.

Considerable suffering on the part of both

noncustodial parents and their children’ will

continue.

The Tax Court set precedent to urgent issues

of family law, taxes, and the Constitution. We need

a decision by this Court on these issues without

further delay.

IX. Conclusion

For the reasons stated herein, this Petition for

Writ of Certiorari should be granted.

Respectfully submitted,

Roger W. Knight, pro se

28945 11th PI. S.

Federal Way, Washington 98003

206-839-4107 home

206-294-2275 work

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ROGER W. KNIGHT, )

Petitioner-Appellant, ) No. 93-70917

V. ) T.C. No. 4755-92

COMMISSIONER OF )

INTERNAL REVENUE ) MEMORANDUM*

SERVICE, )

_____Respondent-Appellee, __)

Appeal from the United States Tax Court

Submitted June 21, 1994**

Before: TANG, PREGERSON, and T.G. NELSON,

Circuit Judges.

Roger W. Knight appeals pro se the tax court's

summary judgment for the Commissioner of the

Internal Revenue Service (Commissioner’) in

Knight's petition challenging the Commissioner's

determination of an income tax deficiency against

Knight for the tax year 1989. We have jurisdiction

pursuant to 26 U.S.C. §7482(a). We review de

novo, see Dial v. Commissioner, 968 F. 2d. 898, 900

(9th Circ. 1992), and affirm.

° This disposition is not appropriate for publication and

may not be cited to or by the courts of this Circuit except as

provided by Ninth Circuit Rule 36-3.

” Pursuant to Ninth Circuit Rule 34-4, the panel

unanimously finds this case suitable for disposition without

oral argument. Fed. R. App. P. 34(a); 9th Cir. R. 34-4.

App. - 1

Knight and his ex-wife were separated in

1987 and obtained a divorce in 1991. Knight's ex-

wife retained custody of their three dependent

children from the time they were separated. In 1989,

Knight paid child support pursuant to a state court

child support order. The total amount Knight paid

constituted more than one-half of each child's

support.

Knight claimed on his 1989 income tax return

exemptions for his three children. The

Commissioner disallowed these exemptions under

26 U.S.C. §152(e). Section 152(e) provides that a

noncustodial parent such as Knight may claim

exemptions for his dependent children only if he

attaches to his tax return a written declaration signed

by the custodial parent stating that the custodial

parent will not claim the exemptions. See 26 U.S.C.

§152(e). Knight failed to obtain the required

declaration from his ex-wife.

In his petition for redetermination, Knight did

not challenge the factual accuracy of the

Commissioner's deficiency determination but, rather,

challenged the constitutionality of section 152(e) on

three grounds. First, Knight claimed that section

152(e) creates an unconstitutional irrebuttable

presumption that the custodial parent has paid more

than one-half of the child support. Second, Knight

claimed that section 152(e) constitutes a bill of

attainder. Third, Knight claimed section 152(e)

violates his right to equal protection because ex-

App. - 2

spouses may deduct alimony payments but

noncustodial parents may not deduct child support

payments.

This court has recognized that the irrebuttable

presumption doctrine has been severely limited. See

deLaurier v. San Diego Unified School Dist., 588 F.

2d. 674, 683, n. 16 (9th Cir. 1978). We have said

that "(a)n irrebuttable presumption is not per se

unconstitutional ... so long as it is rational.”

Burlington N.R.R. v. Department of Pub. Serv. Reg.,

763 F. 2d. 1106, 1113 (9th Cir. 1985); accord Sakol

v. Commissioner, 574 F. 2d. 694, 698 (2d Cir.)

(stating that "congressional judgments in the form of

'irrebuttable presumptions’ in the economic area will

be upheld where there is a rational relationship

between the criteria set forth in the statutory

mandate and a legitimate congressional purpose’),

cert. denied, 439 U.S. 859 (1978). In Burlington

N.R.R., we also stated that "(a) statutorily defined

irrebuttable presumption ... is not unconstitutional in

statutes which regulate economic matters." 763 F.

2d. at 1113; see also Usery v. Turner Elkhorn

Mining Co., 428 U.S. 1, 23-24 (1976); Sakol, 574 F.

2d. at 698.

Here, assuming that section 152(e) creates an

irrebuttable presumption, the presumption is not

unconstitutional. 1/ Notwithstanding Knight's

1/ Section 151 of the Internal Revenue Code allows a

taxpayer to claim exemptions for dependent children. See 26

App. - 3

arguments to the contrary, the matter of determining

which parent may claim a dependency exemption for

tax purposes is economic. Moreover, as the tax

court concluded, section 152(e) is rationally related

to and advances a legitimate congressional purpose.

See H.R. Rep. No. 432, 98th Cong., 2d Sess. 1498-

1500, reprinted in 1984 U.S.C.C.A.N. 1139, 1139-

1142 (explaining that treatment of custodial parent

presumptively as providing over one-half of child

support eases administrative burden on Internal

Revenue Service with regard to parental disputes

over dependency exemptions). Therefore, the tax

court correctly held that section 152(e) does not

create an unconstitutional irrebuttable presumption.

"A bill of attainder is 'a law that legislatively

determines guilt and inflicts punishment upon an

U.S.C. §151(c). Section 152(a) defines a dependent child as

having received over half of his or her support from the

taxpayer. See id. §152(a). Section 152(e)(1) provides in

general that the custodial parent shall be treated as providing

more than half the support for a dependent child. See id.

§152(e)(1). Thus, the custodial parent generally is entitled to

claim any exemptions for dependent children. See id. §§151,

152(a).

Section 152(e)(2) provides an exception to section

152(e)(1) by allowing the noncustodial parent to claim the

exemption if "the custodial parent signs a written declaration

... that such custodial parent will not claim such child as a

dependent" and “the noncustodial parent attaches such

written declaration to the noncustodial parent's return for the

taxable year." Id. §152(e)(2)(A),(B).

App. - 4

identifiable individual without provision of the

protections of a judicial trial." Antonio v. Wards

Cove Packing Co., 10 F.3d. 1485, 1495 (9th Cir.

1993) (quoting Nixon v. Administrator of Gen.

Servs., 433 U.S. 425, 468 (1977)), pet. for cert. filed,

62 U.S.L.W. 3775 (U.S. May 2, 1994) (No. 93-

1767); see also Cracchiola v. Commissioner, 643 F.

2d. 1383, 1385 n. 1 (9th Cir. 1981) (per curiam).

Section 152(e) does not determine guilt; nor does it

inflict punishment. See Antonio, 10 F. 3d. at 1495

(stating that statute inflicts forbidden punishment if

it falls within "historical meaning of legislative

punishment," “furthers no nonpunitive legislative

goals," and "evinces Congress’ intent to punish”).

We do not agree with Knight that his inability to

claim a tax deduction is punishment within the

meaning of the Bill of Attainder Clause. See id.

Therefore, the tax court correctly held that section

152(e) is not a bill of attainder.

Finally, the tax court correctly held that

section 152(e) does not violate Knight's right to

equal protection. Because this case does not involve

a fundamental right and Knight is not a member

either of a suspect or quasi-suspect class, the tax

court correctly applied the rational basis test. See

Yao v. INS, 2 F. 3d. 317, 321 (9th Cir. 1993); see

also Regan v. Taxation With Representation of

Wash., 461 U.S. 540, 547 (1983). “Normally, a

legislative classification will not be set aside if any

state of facts rationally justifying it is demonstrated

App. - 5

—

to or perceived by the courts.” Licari v.

Commissioner, 946 F. 2d. 690, 692 (9th Cir. 1991)

(quoting United States v. Maryland Sav.-Share Ins.

Corp., 400 U.S. 4, 6 (1970) (per curiam)). The party

challenging the classification must carry the burden

of showing it has no reasonable basis but is

essentially arbitrary. /d.

As the tax court stated, a payer of alimony

may deduct alimony payments because alimony

payments are taxable to the recipient. See 26 U.S.C.

§§ 71, 215. In contrast, child support payments are

neither taxable to the recipient nor deductible by the

payer. The tax court reasoned correctly that the

difference in treatment of the two types of support is

justified by their difference in nature, i.e., the

purposes for which each type of support is paid. On

appeal, Knight has not presented any argument that

persuades us that this reasoning is flawed.2/

2/ In his briefs on appeal, Knight did not raise any

arguments challenging the tax court's denial of his motion to

revise the tax court's opinion. We therefore affirm the tax

court's denial of Knight's motion to revise. We also affirm in

all respects the other tax court orders designated in Knight's

notice of appeal.

App. - 6

UNITED STATES TAX COURT

ROGER W. KNIGHT, )

Petitioner, )

Vv. ) Docket No. 4755-92

COMMISSIONER OF )

INTERNAL REVENUE, )

Respondent. )

DECISION

Pursuant to the Court's Memorandum Opinion

(T.C. Memo. 1992-710), filed December 15, 1992,

and its December 18, 1992 Order, it is

ORDERED AND DECIDED: That there is a

deficiency in income tax due from the petitioner for

the taxable year 1989 in the amount of $1,375.00;

and

Pursuant to the agreement of the parties in the

above-entitled case, it is

ORDERED AND DECIDED: That there is no

addition to tax due from the petitioner for the taxable

year 1989, under the provisions of LR.C. § 6662(c).

(Signed) L.W. Hamblen,

Judge.

Entered: OCT 18, 1993.

App. - 7

T.C. Memo. 1992-710

UNITED STATES TAX COURT

ROGER W. KNIGHT, Petitioner v.

COMMISSIONER OF INTERNAL REVENUE,

Respondent

Docket No. 4755-92. Filed December 15, 1992.

Roger W. Knight, pro se.

Cathy A. Goodson, for respondent.

MEMORANDUM OPINION

PATE, Special Trial Judge: This case came

before the Court when respondent filed a Motion To

Dismiss For Failure To State A Claim Upon Which

Relief Can Be Granted (under Rule 40) on May 7,

1992. At the hearing on respondent's motion, the

parties submitted materials outside the pleadings;

therefore, we treat respondent's motion as one for

summary judgment under Rule 121.1

Respondent determined a deficiency in

petitioner's 1989 Federal income taxes of $1,375 and

imposed an accuracy-related penalty of $275. The

deficiency resulted from the disallowance of four

1 All section references are to the Internal Revenue

Code in effect for the year in issue. All Rule references are

to the Tax Court Rules of Practice and Procedure.

App. - 8

exemptions claimed by petitioner (one for his wife

and three for his children) and application of married

filing separately tax rates to petitioner's taxable

income. The accuracy related penalty resulted from

respondent's determination that petitioner was

negligent in the preparation of his income tax return.

In a "Complaint" filed March 2, 1992, and an

amended petition, filed on April 3, 1992, petitioner

contested respondent's determinations on_ the

grounds that: (1) Section 152(e), which generally

awards the dependency exemption for a child of

divorced parents to the custodial parent, creates an

irrebuttable presumption which is unconstitutional

under the Due Process Clause of the Fifth

Amendment to the Constitution of the United States;

(2) section 152(e) is a bill of attainder prohibited by

article I, section 9, clause 3 of the Constitution of the

United States; and (3) the disparate tax treatment

accorded alimony payments (deductible) and child

support payments (not deductible) violates the equal

protection embodied in the Fifth Amendment to the

Constitution of the United States. He also claims

that he is not subject to the accuracy related penalty

provided for in section 6662. Petitioner resided in

Federal Way, Washington, at the time he filed his

petition.

On May 7, 1992, respondent filed her motion

to dismiss for failure to state a claim in his petition

upon which this Court could grant relief. At a

hearing on the motion, held on June 15, 1992, in

App. - 9

Seattle, Washington, the parties orally stipulated to

an exhibit (petitioner's 1989 Federal income tax

return), which we have taken into account in arriving

at this opinion. Consequently, we treat respondent's

motion as one for summary judgment and dispose of

it as provided in Rule 121. Rules 40, 121.

Under Rule 121(b), a motion for summary

judgment is granted when it is shown "that there is

no genuine issue as to any material fact and that a

decision may be rendered as a matter of law." Either

party may move for summary judgment in its favor

on all or part of the issues in controversy. Rule

121(a). The party moving for summary judgment

has the burden of showing the absence of a genuine

issue of material fact. Jacklin v. Commissioner, 79

T.C. 340, 344 (1982); Espinoza v. Commissioner, 78

T.C. 412, 416 (1982). In considering a motion for

summary judgment, we construe the facts in a

manner most favorable to the party opposing the

motion. Naftel v. Commissioner, 85 T.C. 527, 529

(1985).

The following facts, alleged by petitioner, are

not disputed by respondent for purposes of the

motion before us. Petitioner and his wife, Royanne

M. Knight. were separated in July 1987 and

divorced in July 1991. All of their children have

lived with Mrs. Knight since their separation.

During 1989, petitioner remitted monthly child

support payments to Mrs. Knight, which payments

constituted more than one-half of the support of the

App. - 10

children. Mrs. Knight refused to release the right to

claim the dependency exemptions to petitioner.

For 1989, petitioner filed a Federal income tax

return, which purported to be a joint return, on

which he claimed five exemptions, one each for

himself and his wife and three for their dependent

children. He did not deduct the child support

payments he made to his wife. In an attachment to

the return, petitioner stated that his wife's signature

was not on the return because she refused to sign it.

Subsequently, in a notice of deficiency, respondent

determined that petitioner was not entitled to four of

the exemptions he had claimed and applied married

filing separately tax rates to petitioner's income.

In her motion, respondent contends that the

petitioner is not entitled to the dependency

exemptions for the children even though he provided

more than half of their support because he did not

have custody of the children. Petitioner admits that

section 152(e),2 in general, awards the dependency

2 Section 152(e) which was amended by the Deficit

Reduction Act of 1984, Pub. L. 98-369, sec. 423(a), 98

Stat.494, 799, and applies to tax years beginning after

December 31, 1984, states:

(1) CUSTODIAL PARENT GETS EXEMPTION,--

Except as otherwise provided in this subsection, if--

(A) a child *** receives over half of his support

during the calendar year from his parents--

(i) who are divorced or legally separated under a

decree of divorce or separate maintenance,

App. - 11

exemptions for children of divorced parents to the |

custodial parent. However, he contends that section

152(e) is unconstitutional because it creates an

"irrebuttable presumption" which violates the due

process clause of the Fifth Amendment to the

Constitution of the United States.

Basically, petitioner argues that the rule

contained in section 152(e) (that the custodial parent

(ii) who are separated under a written separation

agreement, or

(iii) who live apart at all times during the last 6

months of the calendar year, and

(B) such child is in the custody of one or both of his

parents for more than one-half of the calendar year,

such child shall be treated *** as receiving over half of his

support during the calendar year from the parent having

custody for a greater portion of the calendar year (hereinafter

in this subsection referred to as the "custodial parent”).

(2) EXCEPTION WHERE CUSTODIAL PARENT

RELEASES CLAIM TO EXEMPTION FOR THE YEAR.--

A child of parents described in paragraph (1) shall be treated

as having received over half of his support during a calendar

year from the noncustodial parent if--

(A) the custodial parent signs a written declaration

*** that such custodial parent will not claim such child as a

dependent for any taxable year beginning in such calendar

year, and

(B) the noncustodial parent attaches such written

declaration to the noncustodial parent's return for the taxable

year beginning during such calendar year. eZ

For purposes of this subsection, the term "noncustodial

parent” means the parent who is not the custodial parent.

App. - 12

. shall be treated as having provided over half of a

child's support) constitutes an irrebuttable

presumption which unconstitutionally deprived him

of his right to present evidence proving that he, the

noncustodial parent, is entitled to the exemptions.

He cites Heiner v. Donnan, 285 U.S. 312 (1932), in

support of his argument. An __ irrebuttable

presumption is defined in Heiner v. Donnan, supra

at 324, as a presumption which is "incapable of

being overcome by proof of the most positive

character.” In that case, the Supreme Court declared

unconstitutional a gift tax provision which presumed

that gifts made within 2 years of a donor's death

were made in contemplation of death. Petitioner

contends that section 152(e) "presumes" that the

custodial parent provided more than one-half of the

children's support and operates to award the

dependency exemptions to the custodial parent even

if the noncustodial parent provided all of the

children's support.

However, subsequent Supreme Court

decisions have narrowed the scope of the doctrine

laid down in Heiner v. Donnan, supra. See Usery v.

Turner Elkhorn Mining Company, 428 US. 1

(1976); Weinberger v. Salfi, 422 U.S. 749 (1975);

see also Kolom v. Commissioner, 644 F. 2d. 1282

(9th cir 1981); deLaurier v. San Diego Unified

School Dist., 588 F. 2d. 674, 683 n. 16 (9th Cir.

1978); B.G.M. Enterprises v. Harris, 482 F. Supp.

1073 (1980). With regard to economic matters, the

App. - 13

current status of the doctrine was analyzed

extensively (in its review of a tax case) by the

Second Circuit in Sakol y. Commissioner, 574 f. 2d.

694 (2d Cir. 1978), affg. 67 T.C. 986 (1977). Based

on that analysis, the Second Circuit concluded that

“congressional judgments in the form of ‘irrebuttable

presumptions’ in the economic area will be upheld

where there is a rational relationship between the

criteria set forth in the Statutory mandate and a

legitimate congressional purpose." Sakol y.

Commissioner, supra at 698; see also Sjoroos vy.

Commissioner, 81 T.C. 971, 973 (1983). Generally,

the alleviation of ‘administrative burdens and

practical problems of enforcement" constitutes a

legitimate congressional purpose. Bryant yy.

Commissioner, 72 T.C. 757, 766 (1979).

Prior to Congress’ amendment of section

152(e),3 in the case of children of divorced parents,

3 Prior to amendment, section 152(e) read as follows:

(1) GENERAL RULE..--If--

(A) A child *** receives over half of his support

during the calendar year from his parents who are divorced

or legally separated under a decree of divorce or separate

maintenance, or who separated under a written separation

agreement, and,

(B) such child is in the Custody of one or both of his

parents for more than one half of the calendar year, such

child shall be treated, for Purposes of subsection (a), as

receiving over half of his Support during the calendar year

from the parent having custody for a greater portion of the

App. - 14

the custodial parent generally was treated as having

provided more than one half of the support for each

child during the calendar year and entitled to a

dependency exemption for each of them. Sec.

calendar year unless he is treated, under the provisions of

paragraph (2), as having received over half of his support for

such year from the other parent (referred to in this subsection

as the parent not having custody).

(2) SPECIAL RULE.--The child of parents described

in paragraph (1) shall be treated as having received over half

of his support during the calendar year from the parent not

having custody if--

(A)(i) the decree of divorce or of separate

maintenance, or a written agreement between the parents

applicable to the taxable year beginning in such calendar

year, provides that the parent not having custody shall be

entitled to any deduction allowable under section 151 for

such child, and

(ii) such parent not having custody provides at least

$600 for the support of such child during the calendar year,

(B)(i) the parent not having custody provides $1,200

or more for the support of such child (or if there is more than

one such child, $1,200 or more for each of such children) for

the calendar year, and

(ii) the parent having custody of such child does not

Clearly establish that he provided more for the support of

such child during the calendar year than the parent not

having custody.

For purposes of this paragraph, amounts expended for the

support of a child or children shall be treated as received

from the parent not having custody to the extent that such

parent provided amounts for such support.

App. - 15

152(e)(1); Labay y. Commissioner, 55 T.C. 6, 10

(1970), affd. per curiam 450 F. 2d. 280 (Sth Cir.

1971). However, an exception to this general rule

provided that the noncustodial parent was entitled to

the exemptions if such parent provided $1,200 or

more for the support of each child and the custodial

parent did not "clearly establish" the amount of

support, the custodial parent had to show, by a clear

preponderance of the evidence, that he or she

provided more support for each child than the

noncustodial parent. Pierce y. Commissioner, 66

T.C. 840, 849 (1976); Labay y. Commissioner,

supra at 13. Sec. 1.152-4(d)(3), Income Tax Regs.

As a result, when a dependency exemption of a child

of divorced parents was in dispute, the IRS was

forced to examine conflicting evidence to discern

which parent provided the requisite amount of

Support in order to determine which of them was

entitled to the dependency exemption. See, e.g.,

McGuire vy. Commissioner, 77 T.C. 765 (1981):

McCaskill yy. Commissioner, 77 T.C. 689, 694

(1981); Brown vy. Commissioner, 48 a& 42. 43

(1967).

Congress explained its Purpose for changing

section 152(e) in H. Rept. 98-432 (Part I) at 197

(1984). In that report, it stated that the prior

Statutory framework for awarding dependency

exemptions for children of divorced parents was

often subjective and present difficult

problems of proof and substantiation. The

App. - 16

Internal Revenue Service became involved in

many disputes between parents who both

claim the dependency exemption based on

providing support over the applicable

thresholds. *** The Committee wished to

provide more certainty by allowing the

custodial spouse the exemption unless that

spouse waives his or her right to claim the

exemption. Thus, dependency disputes

between parents will be resolved without the

involvement of the Internal Revenue Service.

In other words, in enacting the current version

of section 152(e), Congress sought to eliminate the

role of the Internal Revenue Service (hereinafter

IRS) as mediator between parents in disputes over

which parent is entitled to the dependency

exemption. To accomplish this task, Congress

enacted a statute which, as a general rule, awards the

dependency exemption to the custodial parent by

treating that parent as the provider of over one half

of the child's support. The exemption may be

transferred to the noncustodial parent, however, if

the custodial parent signs a written declaration to

that effect in conformity with section 152(e)(2).

Because this statutory scheme eases the

administrative burden of the IRS and thereby

advances enforcement of the statute in a rational

way, it furthers a legitimate congressional purpose.

Accordingly, we hold that section 152(e) does not

violate the due process clause of the Fifth

App. - 17

Amendment to the Constitution of the United States.

See Bryant v. Commissioner, 72 T.C. 757, 766-767

(1979).

Next, respondent contends that petitioner

erred in alleging that section 152(e) constitutes a bill

of attainder. A bill of attainder is a legislative act

that determines guilt and punishes identifiable

individuals without a judicial trial. See Nixon v.

Administrator of General Services, 433 U.S. 425

(1977); Cracchiola v. Commissioner, 643 F. 2d.

1383 (9th Ci: 1981), affg. per curiam T.C. Memo.

1979-3, T.C. Memo 1979-11, T.C. Memo. 1979-13:

Barr v. Commissioner, 51 T.C. 693, 695-696 (1969).

The purpose of the bill of attainder clause is to

ensure that the responsibility of deciding an

individual's guilt or innocence is reserved for an

independent judicial branch, and is not usurped by

the legislative branch of Govemnment. United States

v. Brown, 381 U.S. 437 (1965); Connolly vy.

Commissioner. T.C. Memo. 1977-62.

In arguing that section 152(e) is a bill of

attainder, petitioner assumes, as an underlying

premise, that section 152(e) inflicts "punishment"

upon noncustodial parents. However, Federal

income taxation is not a "punishment" for some sort

of wrongdoing. Rather, it is a law to raise revenue

to run the Government, and all persons who are

within the ambit of the law and have sufficient

income are subject to such taxation. Consequently,

“It is wholly irrelevant to sreak of a bill of attainder

App. - 18

in *** (a) civil proceeding involving *** (a

taxpayers) income tax liability." Johnson vy.

Commissioner, T.C. Memo. 1978-32, affd. without

published opinion 624 F. 2d. 192 (9th Cir. 1980).

Moreover, the basis on which the income tax

is computed is the gross income of the taxpayer.

Enactment of deductions and exemptions to reduce

the amount of that income as a basis for taxation is

strictly within congressional discretion and Congress

may grant as many or as few deductions to

whomever it deems appropriate just as long as it

serves a legitimate purpose of the legislative branch.

New Colonial Ice Co. v. Helvering, 292 U.S. 435,

440 (1934).

In enacting section 152(e), Congress

determined that it generally would award the

dependency exemption for a child of divorced

parents to the custodial parent. That determination

in no way constitutes a pronouncement of guilt nor

inflicts any punishment. It simply awards a tax

benefit to the custodial parent, a matter properly

within Congress’ discretion. For these reasons, we _

hold that section 152(e) does not constitute a bill of

attainder.

Finally, in his petition, petitioner contends

that he should be allowed to deduct the full amount

he remitted to his wife for child support in the same

manner as alimony payments are deductible. He

Claims that the disparate treatment of alimony as

compared with child support violates the Due

App. - 19

Process Clause of the Fifth Amendment. In her

motion, respondent contends that petitioner's

analogy is an incorrect one and, that in considering

petitioner's child support payments, we should take

into account that no parent is allowed to deduct the

amount expended to support his or her child.

It is well settled that the due process clause of

the Fifth Amendment embraces the principles of the

Equal Protection Clause of the Fourteenth

Amendment with regard to Federal enactments.

Johnson v. Robison, 415 U.S. 361, 364-365 n.

4.(1974); Shapiro vy. Thompson, 394 U.S. 618, 641-

642 (1969). In evaluating whether a Federal] Statute

violates equal protection, we must use a "Strict

Scrutiny" standard when the _ statute: (1)

Impermissibly interferes with the exercise of a

fundamental right, or (2) operates to the particular

disadvantage of a Suspect class. See Regan y.

Taxation with Representation, 461 U.S. 540, 547

(1983); Massachusettes Bd. of Retirement v. Mursgis,

427 U.S. 307, 312 (1976); San Antonio Independent

school Dist. v. Rodriguez, 411 U.S. 1, 16-17 (1973),

Petitioner argues that the Strict scrutiny

standard must be used in this case because the

Statute "discriminates against taxpayers who

exercised the fundamental right to procreate" and

that "decisions conceming the exercise of this

fundamental right are best made by individuals

without interference by government in a free

society." Petitioner's argument misses the point.

App. - 20

this statute creates no impermissable interference

with the right to have children. Rather, this statute

awards the exemptions to one of the persons that

exercised such right to procreate. Nor does the

Statute implicate any suspect class. It applies

regardless of the race or sex of the custodial parent,

of the noncustodial parent, and of the child.

Because no fundamental right or suspect class

is involved in this case, we apply a rational basis

standard. Under such standard, a deduction does not

violate the equal protection clause" if any state of

facts rationally justifying it is demonstrated to or

perceived by the courts." United States v. Maryland

Savings-Share Ins. Corp., 400 U.S. 4, 6 (1970); see

Regan v. Taxation with Representation, supra;

Sjoroos v. Commissioner, 81 T.C. 971 ( 1983);

Keeler v. Commissioner, 70 T.C. 279, 285-286

(1978).

In general, a payor of alimony or separate

maintenance may deduct amounts paid, but the

recipient must include such payments in gross

income. Secs. 71, 215. These provisions relieve the

payor of the liability for income tax on the amount

transferred to the other parent, but impose that

burden on the person receiving and enjoying the

benefit of the alimony. H. Rept. 98-432 (Part I) at

194 (1984).

In contrast, child support payments are neither

deductible by the payor nor taxable to the recipient.

Petitioner argues that the recipient of his child

App. - 21

support payments (Mrs. Knight) should bear the

burden of tax because she gets the benefit of the

income. Moreover, petitioner maintains that

denying the parent paying the child support exhibits

‘a willingness by Congress to invidiously

discriminate against noncustodial parents."

However, petitioner, in his argument, fails to

take into account that the child support money he

pays to Mrs. Knight goes toward the support of their

children, not for her benefit or enjoyment as is the

case of alimony. He further fails to take into

account that personal, living, and family expenses

(including the cost of supporting one's child) are not

deductible by any taxpayer. Sec. 262.

Consequently, no parent may deduct the cost of

supporting his or her child’ no distinction is made

between parents who are married or unmarried,

parents who are married to each other or to others, or

parents having or not having custody of the child.

Therefore, in his capacity as a parent supporting his

children, petitioner is subject to the same rules

which apply to all parents. It is obvious then that the

difference in treatment between alimony and child

support does not discriminate against noncustodial

parents and does not violate equal protection.

Lastly, in his petition, petitioner raised the

propriety of respondent's determination in the notice

of deficiency that he was negligent and therefore

subject to the section 6662 accuracy related penalty.

In respondent's motion for Summary judgment,

App. - 22

however, other than asking the Court to award

respondent such amount, respondent failed to

address the allegation. Moreover, respondent failed

to present any arguments in support of such award in

her memorandum of law.

In considering a motion for summary

judgment, we must construe the facts in a manner

most favorable .o the opposing party, in this case the

petitioner. because respondent failed to sufficiently

raise the issue of petitioner's negligence, petitioner

was not afforded an opportunity to present

arguments that he was not negligent. Moreover,

because respondent failed to enlighten us as to what

facts were taken into account in her determination

that petitioner was negligent, at this point we could

only guess what facts she wants us to consider.

Because of respondent's failure to adequately raise

an argue the issue of the accuracy related penalty in

her motion for summary judgment, we decline to

uphold such determination at this juncture.

To reflect the foregoing,

An appropriate order granting partial

summary judgment for respondent will be

issued.

App. - 23

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