Thomas William McAdams - Page 10




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          resided in the same house with his wife during this time.                   
               We conclude that for purposes of section 86(c)(1)(C)(ii)               
          petitioner did not live apart from his spouse at all times during           
          the taxable year.  Accordingly, his “base amount” for 1998 was              
          zero.                                                                       
               B. Constitutionality                                                   
               Petitioner’s final argument is leveled at the                          
          constitutionality of section 86.  In essence, petitioner                    
          questions the fairness of section 86.  In San Antonio Indep. Sch.           
          Dist. v. Rodriguez, 411 U.S. 1, 41 (1973), the U.S. Supreme Court           
          noted 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.”  We               
          have repeatedly held that section 86 does not suffer any                    
          constitutional infirmities.  Thomas v. Commissioner, T.C. Memo.             
          2001-120; Clark v. Commissioner, T.C. Memo. 1998-280, affd.                 
          without published opinion 187 F.3d 641 (8th Cir. 1999); Roberts             
          v. Commissioner, T.C. Memo. 1998-172, affd. without published               
          opinion 182 F.3d 927 (9th Cir. 1999).  Accordingly, we deny                 
          petitioner’s constitutional claim.                                          
               To reflect the foregoing,                                              
                                                  Decision will be entered            
                                             for respondent.                          








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