Lane-Burslem v. Comm'r of Internal Revenue, Docket No. 934-75.

• Decision Date: 22 August 1979
• Docket Number: Docket No. 934-75.
• Citation: 72 T.C. 849
• Parties: IONA SUTTON LANE-BURSLEM, PETITIONER v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

72 T.C. 849

IONA SUTTON LANE-BURSLEM, PETITIONER

v.COMMISSIONER of INTERNAL REVENUE, RESPONDENT

Docket No. 934-75.

United States Tax Court

Filed August 22, 1979.

This case is before us on petitioner's motion for reconsideration of our decision in Lane-Burslem v. Commissioner, 70 T.C. 613 (1978). In that case, we held that under Louisiana law, a wife's domicile is that of her husband's (unless misconduct by the husband). Taxpayer's husband was domiciled in England and the taxpayer, therefore, took an English domicile. For that reason, her earnings were not subject to Louisiana community property law and her husband did not have a one-half interest in these earnings. Held: Petitioner's constitutional challenge to Louisiana law is self-defeating. If it were assumed that the statute was unconstitutional, the result would nonetheless be the same: the taxpayer's husband would not have a one-half interest in the taxpayer's earnings. Therefore, it is unnecessary to reach the constitutionality of the law. Robert E. Falb, for the petitioner.

Thomas F. Kelly and Mary V. Harcar, for the respondent.

SUPPLEMENTAL OPINION

IRWIN, Judge:

This case is before us on petitioner's motion for reconsideration of our opinion in Lane-Burslem v. Commissioner, 70 T.C. 613, filed August 3, 1978. The salary earned while she was employed in England by the United States Department of Defense should be treated as her spouse's income under Louisiana community property laws, and, therefore, exempt from United States income taxation because her spouse was a nonresident alien and the income was from foreign sources.

In our original opinion, we held that it would be necessary for both the husband and wife to have their domiciles in Louisiana in order to create a marital community in which both spouses would share in the earnings of the Louisiana domiciliary.¹ See La. Civ. Code Ann. arts. 2334, 2401, 2402,² and 136 (West 1971). Petitioner argues that under our original opinion, assuming she is entitled to a Louisiana domicile,³ she would still have to prove that her husband is also domiciled in Louisiana in order to obtain the benefits of community property, but that the converse is not true. That is, a man domiciled in Louisiana is not required to establish that his wife is also domiciled there. Instead, by reason of Louisiana Civil Code Annotated article 39, the wife by operation of law takes the domicile of her husband, so that the marital community is always at the place of the husband's domicile.

The issue presented to us by petitioner on this motion is whether the laws of Louisiana, which deny petitioner a domicile in Louisiana and the benefits of that State's community property law, are constitutional under the Equal Protection Clause of the 14th Amendment and the Due Process Clause of the 5th Amendment. her husband has a property right in her income in the event we hold Louisiana Civil Code Annotated article 39 unconstitutional.⁴ It is her position that under Louisiana law, a woman in the situation that her husband was in during the years in issue would obtain a property right in income (due to the operation of article 39) and that she is, therefore, entitled to the same treatment upon a finding that the law is unconstitutional.⁵

While we agree with petitioner that she need not show that she would ultimately prevail in her lawsuit in this Court in order to have standing to challenge the constitutionality of the Louisiana statute (Orr v. Orr, 440 U.S. —- (1979)), we do not believe she is necessarily entitled to the relief she seeks upon a showing that the statute is unconstitutional.⁶ We believe that we must decide, assuming that Louisiana Civil Code Annotated article 39 is unconstitutional, whether petitioner is entitled on other grounds of gender-neutral State law to the benefits of community property. Nothing in Orr v. Orr, supra, is to the contrary. The Court specifically noted that declaring a State statute unconstitutional often does not resolve the controversy to the State courts for further proceedings. Since we cannot remand this case to the State courts, but must instead determine State law, we believe it is unnecessary to reach the constitutional issue unless petitioner would prevail upon a finding that the law is unconstitutional.⁷

In this regard, petitioner contends that the constitutional infirmity (if there is one) would be resolved by Louisiana granting to either spouse the ability to take his or her own domicile and that the nonresident and nondomiciliary spouse would have a community property interest in the Louisiana domiciliary spouse's property. If this were the case, petitioner would prevail, assuming she maintained a separate, Louisiana domicile.

We disagree. The rationale underlying Louisiana Civil Code Annotated article 39, that the domicile of the wife is that of her husband, is that under Louisiana law a wife is bound to live with her husband.⁸ La. Civ. Code Ann. art. 120 (West 1971). See also Self v. Self, 228 So. 2d 518 (La. App. 1969). The husband has a concomitant duty to provide a home for the wife and support her. La. Civ. Code Ann. art. 120 (West 1971). Because the law casts upon the wife the duty to take her husband's domicile, it invests her with correlative rights, one of which is to share in the earnings of her husband so long as the community is not disrupted. But the law does not impose upon the husband, at least ordinarily, the obligation to take the domicile of his wife.⁹ For that reason, the husband does not take the same concomitant or correlative rights as the law confers upon the wife. The wife, who must accept the burden of her husband's domicile, is the husband, not being required to accept the wife's domicile, is not in the same position as to benefits that inure to the wife in the domicile of her husband. See Payne v. Commissioner, 141 F.2d 398, 403 (5th Cir. 1944) (Judge Waller concurring).

If we reject as unconstitutional the rule that the wife's domicile is that of her husband by operation of law, it would seem to follow that she should not automatically obtain the benefit of owning a half-interest in her husband's earnings since the rationale for providing her with that benefit no longer exists. It is clear that the husband, who does not take his wife's domicile, does not receive the benefits of his wife's domicile. We believe on this basis that if Louisiana Civil Code Annotated article 39 is unconstitutional as it relates to determining property rights, the Louisiana courts would deny a wife, residing in a common law property State apart from her husband (and retaining her own domicile) a one-half interest in her husband's property. Under this system, then, the neither a husband nor a wife has a community property interest in the property of the other spouse where the spouse has a domicile apart from his or her husband or wife.¹⁰ This is consistent with the holding in our original opinion ( 70 T.C. 620-621) in which we interpreted Louisiana Civil Code Annotated article 2401 to mean that in the absence of both spouses having their domiciles in Louisiana, there is no marital community upon which basis the non-Louisiana domiciliary would have a community property interest in the earnings of the Louisiana domiciliary. This statute is gender-neutral and under the facts in this case, would not take a Louisiana domicile assuming arguendo that petitioner retained her Louisiana domicile. ¹¹ Therefore, petitioner's husband does not have a property right in petitioner's income.

In short, we do not believe that under any interpretation of Louisiana law, whether article 39 is constitutional or unconstitutional, petitioner's husband would have a property interest in petitioner's income. This is so because we have determined that, absent Louisiana Civil Code Annotated article 39, petitioner's marital domicile would be England, the domicile of her husband (on a factual, rather than legal basis); or alternatively, if petitioner retained a separate, Louisiana domicile, her husband would retain his domicile in England with no legal basis for a community interest in her income. For this reason, we do not need to decide the constitutional question. We again hold for respondent on this issue.

Decision will be entered under Rule 155.

1. Under Louisiana property law, a claim for wages of a wife who is living with her husband belongs to the community. La. Civ. Code Ann. arts. 2334, 2402 (West 1971). Martin v. Ethyl Corp., 341 F.2d 1 (5th Cir. 1965); Fazzio v. Krieger, 226 La. 571, 76 So. 2d 713 (1954); DeMaupassant v. Clayton, 214 La. 812, 38 So. 2d 791 (1949); Houghton v. Hall, 177 La. 237, 148 So. 37 (1933); Succession of Howell, 177 La. and husband were domiciled in Louisiana, i.e., the marital domicile was Louisiana.

2. As in effect during the years in issue. Louisiana has adopted sweeping changes in its community property laws. See Acts 1978, No. 627 (relating generally to equal management of property by spouses). Sec. 6 repealed tit. VI, Vol. III, La. Civ. Code, comprised of arts. 2325 through 2437. Sec. 9 of Act 627 provides in pertinent part that “Except for R.S. 9:2831 through 2835, Section 1, Section 2, Section 6, Section 7, and Section 8 of this Act to the property and obligations of all spouses whether the spouses were married or whether property was acquired or an obligation was incurred prior to or after January 1, 1980, unless the spouses have adopted a matrimonial regime by express contract.”

3. We realize that the modern trend is to recognize separate domiciles for a husband and a wife if in fact they are residing in and intend to maintain separate domiciles and both parties agree. Wilson v. Pickens, 444 F. Supp. 53 (W.D. Ok1a. 1977); Napletana v. Hillsdale College, 385 F.2d 871 (6th Cir. 1967). We are also aware of at least one case in which it was held that the Equal Protection Clause of the 14th Amendment requires that a wife be capable of acquiring a domicile...