Robert J. and Doris L. Peat - Page 5




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                                   (ii) does not live apart from his spouse           
                              at all times during the taxable year.                   
               Petitioners do not contend that under the literal language             
          of section 86 respondent’s determination is incorrect.  Instead,            
          petitioners argue that section 86 is inequitable in that it                 
          treats persons not married and living together or persons married           
          and living apart with preference to those individuals who are               
          married and living together.  Petitioners argue that they should            
          be entitled to double the section 86 base amount of $25,000 for             
          single individuals as opposed to the $32,000 base amount for                
          married couples filing jointly.                                             
               As we noted in Everage v. Commissioner, T.C. Memo. 1997-373,           
               Petitioner’s chagrin and frustration may be understandable.            
               Nonetheless, we must apply the statutes as Congress wrote              
               them and we do not have the power to rewrite section 86 to             
               avoid this anomaly.  See Huntsberry v. Commissioner, 83 T.C.           
               742, 747-748 (1984).                                                   
          The taxpayers in Roberts v. Commissioner, T.C. Memo. 1998-172,              
          also questioned the fairness of section 86.  In Roberts, we noted           
          that                                                                        
               this is not the proper forum to question the policy                    
               considerations that impelled the enactment of this                     
               legislation. * * *  The legislative history of section 86,             
               as enacted in 1983, demonstrates that Congress had a valid             
               and rational basis for the distinctions made in the                    
               statute[.]                                                             
               ****** *                                                               
                    We recognize that “‘No scheme of taxation, whether the            
               tax is imposed on property, income, or purchases of goods              
               and services, has yet been devised which is free of all                
               discriminatory impact.’”  Druker v. Commissioner, 77 T.C.              





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