c33:No. 184

PATTERSON, Circuit Judge
(dissenting).
I dissent. The respondents, husband and wife, saw fit to file a single joint income tax return for 1933. The Revenue Act of 1932, like prior acts, gave them the right to file “a single joint return” and declared that in such case “the tax shall be computed on the aggregate income.” The obvious result, it seems to me, is that husband and wife who file- a single return are to be treated as a single taxpayer and are jointly liable for the tax. They are by express provision a single taxpayer for the most important feature, the amount of the tax. The thought that despite the joint return they are separate taxpayers and are separately liable, each only for the percentage of the tax that his or her net income bears to the aggregate net income, is a refinement for which I find no basis in the Act. Since 1918 the form of return used by husband and wife jointly has been the same form as that used by a single person, and it has no spaces for separation of items between husband and wife. The decision of the majority means that the returns made by husband and wife jointly have never fulfilled their purpose, which is to state the tax liability of the person or persons submitting the return. The decision also introduces difficulties in enforcement of the tax. Take a case where husband and wife file a single return showing a tax due of $5,000, but no tax is paid. Must the government in such a case take on the task of discovering the separate income of each spouse and of pursuing each for his or her portion of the tax? Or take the case, a common one, where a joint return is filed and the tax shown due thereon is paid, but the commissioner later' finds a deficiency. Must the commissioner not merely analyze all the figures and determine what part of the total tax was originally owed by each, but also find out, if he can, the contributions of each to the prior payments made on account of the tax and credit each accordingly? Such complexities in tax gathering “are not lightly to be imputed to legislators.” Edwards v. Slocum, 264 U.S. 61, 63, 44 S.Ct. 293, 68 L.Ed. 564.
In prior revenue acts affiliated corporations were permitted to file a single consolidated return, the tax to be computed as a unit, but there was an express provision that the assessment of tax should be on the respective corporations on the basis of the net income properly assignable to each, in the absence of agreement to the contrary. Revenue Act of 1926, section 240, 44 Stat. 46. The corporations were thus made separate taxpayers as to liability for tax. Woolford Realty Co. v. Rose, 286 U.S. 319, 52 S.Ct. 568, 76 L.Ed. 1128. If Congress had intended the same result in the case of husband, and wife filing a single return, it is fair to assume that it would have covered the point by an analogous provision. But no such provision was made as to the joint return of husband and wife.
The House Committee report on the bill which later became the Revenue Act of 1938, states that section 51 of the bill, wherein it was expressly provided that spouses electing to file a joint return are jointly and severally liable for the tax, is a restatement in amplified form of existing law. I think that such legislative construction is entitled to weight, though perhaps not controlling weight, in determining the meaning of the prior statutes.

Passage view · GavelSight