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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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