- 18 -
Finally, in determining whether a retroactive amendment is
constitutional, we may consider whether the retroactive legislation
“abrogates vested rights” of the taxpayer, and whether the taxpayer
relied to his or her detriment on the law prior to the amendment, so
that had the taxpayer known of the legislative changes, he or she
could have avoided the tax imposed by the amendment. See, e.g.,
Rocanova v. United States, supra at 30. We dismiss petitioner’s
argument that the 1998 amendment violates due process because she
detrimentally relied upon the preamendment version of section
32(c)(3)(A).6 The 1998 amendment does not abrogate petitioner’s
rights. As the Supreme Court explained in United States v. Carlton,
supra at 33: “[a taxpayer’s] reliance alone is insufficient to
establish a constitutional violation. Tax legislation is not a
promise, and a taxpayer has no vested right in the Internal Revenue
Code.” Moreover:
Taxation is neither a penalty imposed on the
taxpayer nor a liability which he assumes by
contract. It is but a way of apportioning the
cost of government among those who in some
measure are privileged to enjoy its benefits and
must bear its burdens. Since no citizen enjoys
immunity from that burden, its retroactive
imposition does not necessarily infringe due
process * * *.
Welch v. Henry, supra at 146-147.
6 We note that before 1998, the Internal Revenue Service
had consistently applied sec. 32(c)(1)(C) without considering
whether the taxpayer with the highest modified adjusted gross
income identified the qualifying child on his or her return. See
IRS Publication 596, Earned Income Credit (1991-1999).
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