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10/17/86 Sydney C. Kravetz, v. Commissioner of Internal

October 17, 1986

SYDNEY C. KRAVETZ, APPELLANT

v.

COMMISSIONER OF INTERNAL REVENUE 1986.CDC.353 DATE FILED: OCTOBER 17, 1986



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

Rules of the District of Columbia Circuit Court of Appeals may limit citation of unpublished opinions. Please refer to the Rules of the United States Court of Appeals for this Circuit.

APPEAL FROM THE UNITED STATES TAX COURT.

MEMORANDUM

For the taxable years 1980 and 1981, Sydney C. Kravetz was a resident of Mexico and married to a non-resident alien. In filing his tax returns for both of these years, Mr. Kravetz utilized the "maximum tax" provision of section 1348 of the Internal Revenue Code. 26 U.S.C. § 1348 (1982). This section permits qualifying individuals to limit the maximum tax rate on their personal service taxable income to 50 percent. In some circumstances, use of section 1348 can be advantageous to the taxpayer, resulting in a lower total tax bill.

The availability of section 1348 is limited in several respects, one of which is important to this case. Specifically, subsection (c) mandates that section 1348 apply to "a married individual only if such individual and his spouse make a single return jointly for the taxable year." Although they were eligible to do so, Kravetz and his non-resident alien spouse did not elect to file a joint return. Thus, the IRS took the position that Kravetz was not allowed to invoke section 1348 to calculate his 1980 and 1981 taxes. The Tax Court, in a memorandum opinion, agreed with the IRS. So do we.

Mr. Kravetz's primary argument is that, despite the fact that he is married, he should not be considered as a married individual for purposes of section 1348. Kravetz reaches this unusual position by relying on section 2(b) of the Code, which defines the tax status of "head of household." While "head of household" status generally extends only to unmarried individuals, Kravetz properly obtains "head of household" status under subsection 2(b)(2). That provision states as follows:

For purposes of this subsection . . . a taxpayer shall be considered as not married at the close of his taxable year if at any time during the taxable year his spouse is a non-resident alien . . .

This provision entitles Kravetz, who was married to a non-resident alien for the years at issue, to be "considered as not married" "for purposes of" subsection 2(b) -- that is, for "head of household" eligibility. Subsection 2(b)(2)goes further, Kravetz argues, and also renders him "not married" for purposes of the entire Code. See Appellant's Brief at 13-14. A reading of the "clear and unambiguous" language of the subsection, however, demonstrates that this argument cannot stand. Cf. Board of Governors v. Dimension Financial Corp., 106 S. Ct. 681, 686 (1986).

The operation of 2(b)(2)is expressly limited to subsection 2(b) -- that is, to determinations of head of household eligibility. See 26 U.S.C. § 2(b)(2)(1982) ("For purposes of this subsection"). Thus, the fiction that a married taxpayer is not married exists only for the purpose of permitting that taxpayer to claim head of household status. The necessary implication of the expressly limited operation of 2(b)(2)is that for purposes of other sections of the Code, a taxpayer married to a non-resident alien is to be considered married. Moreover, subsection 2(b)(2)provides that a taxpayer is "considered as not married." Such a tentative designation suggests that the unmarried status of a taxpayer married to a non-resident alien is a limited legal fiction.

In sum, by its terms, the "unmarried" status of a married taxpayer created by subsection 2(b)(2)is limited in scope. A married taxpayer able to utilize 2(b)(2)to claim head of household status remains a married taxpayer for all other sections of the Code. We are persuaded that when the maximum tax provision, section 1348, refers to a "married individual," it includes married individuals "considered as not married" "for purposes of" subsection 2(b). In our view, a careful reading of the language of the relevant sections of the IRC leads to rejection of Kravetz's argument.

As a married individual, Kravetz may utilize the maximum tax provisions of section 1348 only if he files a joint tax return with his spouse. We cannot in conscience permit Kravetz to avoid the clear import of the statutory language. But see Young v. Community Nutrition Institute, 106 S. Ct. 2360 (1986). Accordingly, the decision of the Tax Court is Affirmed.

JUDGMENT

This appeal from a September 1985 memorandum opinion and decision of the United States Tax Court was briefed by the parties. We have accorded full consideration to the issues presented; they occasion no need for a published opinion. See D.C. Cir. R. 11(d), ...


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