610 F.2d 189 (4th Cir. 1979), 77-2302, Ensminger v. C. I. R.

Docket Nº:77-2302.
Citation:610 F.2d 189
Party Name:Nevitt F. ENSMINGER, Appellant, v. COMMISSIONER OF INTERNAL REVENUE, Appellee.
Case Date:December 04, 1979
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit

Page 189

610 F.2d 189 (4th Cir. 1979)

Nevitt F. ENSMINGER, Appellant,



No. 77-2302.

United States Court of Appeals, Fourth Circuit

December 4, 1979

Argued Nov. 13, 1978.

Page 190

Barry Nakell, Chapel Hill, N. C. (William J. Turnier, School of Law, University of North Carolina, Chapel Hill, N. C., on brief), for appellant.

James A. Riedy, Atty., Tax Division, Dept. of Justice, Washington, D. C. (M. Carr Ferguson, Asst. Atty. Gen., Gilbert E. Andrews and Michael L. Paup, Attys., Tax Div., Dept. of Justice, Washington, D. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, PHILLIPS, Circuit Judge, and HOFFMAN [*], Senior District Judge.

HAYNSWORTH, Chief Judge:

The Commissioner of Internal Revenue assessed a deficiency of $128 upon the taxpayer, Nevitt F. Ensminger, after an examination of his income tax return for his 1974 tax year. The deficiency arose out of a disallowance of a dependency deduction for a 21-year old woman who lived with him and was supported by him. The disallowance in turn was based upon the conclusion that the relationship between the taxpayer and the young woman "(was) in violation of local law" within the meaning of § 152(b)(5) of the Internal Revenue Code, 1 since lewd and lascivious cohabitation is a statutory misdemeanor in North Carolina. 2

Ensminger contested the deficiency in the Tax Court where his principal contention was that the North Carolina statute was an unconstitutional invasion of his right to privacy. The Tax Court, while discussing less serious objections to the enforcement of the North Carolina statute, did not address the right to privacy contention. It upheld the assessment of the $128 deficiency, however, and we now affirm.


N.C.Gen.Stat. § 14-184, long in effect in North Carolina, provides:

"If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a misdemeanor."

Page 191

In the Commissioner's audit of Ensminger's tax return the North Carolina statute became relevant because § 152(b)(5) of the Internal Revenue Code provides:

"An individual is not a member of the taxpayer's household if at any time during the taxable year of the taxpayer the relationship between such individual and the taxpayer is in violation of local law."

We construe § 152(b)(5) as requiring the Commissioner to apply the North Carolina statute in the absence of any authoritative declaration of its invalidity. We may not read into the statute qualifying words which would limit its application to local laws which are constitutionally valid. We find no direct reference to the matter in the legislative history of § 152(b)(5). We cannot believe that the Congress intended the Commissioner to judge the constitutional enforceability of such state statutes or that their constitutionality be litigated in the Tax Court when the impact on public revenues might be slight and the state, which has the primary interest in upholding its statutes, is not even present. This is consistent with the allocation of primary authority to states in matters affecting marriages and the general deference of Congress to the states in such areas of the law.

The regulation of marriage, family life and domestic affairs "has long been regarded as a virtually exclusive province of the States." 3

In its application of the tax laws there has been a consistent deference by Congress to state laws in such matters. For example, marital allowances are available only if the man and woman taxpayers are legally married under the laws of the state in which they reside. See John T. Untermann, 38 T.C. 93 (1962). Apparently, the Congress and the Tax Court thought it would be unseemly for the federal tax advantages of marital status to be extended to persons who are unmarried under the laws of the state in which they reside. Similarly § 152(b)(5) serves the same policy of federal deference. 4 Though the Tax Court had reached the same result, holding that the word "dependent" did not include one living in an illicit relationship with the taxpayer, 5 the possibility of successful claims for deductions for such "dependents" lead to the enactment of § 152(b)(5) in 1958. It was the intention of the Congress to preclude any dependency deduction for the partner of a taxpayer when the two were living in a quasi-marital relationship, which is illicit under the laws of the state in which they reside. See S. Rep. No. 1983, 85th Cong., 2d...

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