                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 14-2070
                        ___________________________

                                Isaak Abdi Ibrahim

                             lllllllllllllllllllllAppellant

                                          v.

                        Commissioner of Internal Revenue

                             lllllllllllllllllllllAppellee
                                   ____________

                      Appeal from United States Tax Court
                                ____________

                          Submitted: February 11, 2015
                             Filed: June 10, 2015
                                ____________

Before BYE, BEAM, and BENTON, Circuit Judges.
                           ____________

BENTON, Circuit Judge.

      Isaak Abdi Ibrahim and his wife are immigrants from Somalia with very limited
English. In 2011, Oday Tax Service, whose employees spoke Somali, prepared the
couple’s returns. Ibrahim’s return claimed “head of household” status, which was
improper because he was living with his wife.
      After receiving a notice of deficiency, he filed a petition with the Tax Court,
seeking to change his status to “married filing jointly” to receive a credit and refund.
The Internal Revenue Code prohibits joint returns after a taxpayer has filed a
“separate return,” received a deficiency notice, and filed a petition. 26 U.S.C. §
6013(b). Following its precedent,1 the Tax Court ruled that because head-of-
household returns are separate returns, Ibrahim was prohibited from filing jointly
(leaving him as “married filing separately”). Ibrahim v. Comm’r, 107 T.C.M. (CCH)
1050, 1052 (2014). Having jurisdiction under § 7482, this court reverses and
remands.

                                           I.

      A decision of the Tax Court is “subject to the same review . . . as a similar
order of a district court.” § 7482(a)(3). “The Tax Court’s conclusions of law are
reviewed de novo and findings of fact are upheld unless clearly erroneous.”
Morehouse v. Comm’r, 769 F.3d 616, 619 (8th Cir. 2014).

      Section 6013(b)(1) states (emphases added):

      Except as provided in paragraph (2), if an individual has filed a separate
      return for a taxable year for which a joint return could have been made
      by him and his spouse under subsection (a) and the time prescribed by
      law for filing the return for such taxable year has expired, such
      individual and his spouse may nevertheless make a joint return for such
      taxable year. A joint return filed by the husband and wife under this
      subsection shall constitute the return of the husband and wife for such
      taxable year, and all payments, credits, refunds, or other repayments
      made or allowed with respect to the separate return of either spouse for


      1
       See, e.g., Currie v. Comm’r, 51 T.C.M. (CCH) 486 (1986); Blumenthal v.
Comm’r, 47 T.C.M. (CCH) 590 (1983); Saniewski v. Comm’r, 38 T.C.M. (CCH)
1295 (1979).

                                          -2-
      such taxable year shall be taken into account in determining the extent
      to which the tax based upon the joint return has been paid. If a joint
      return is made under this subsection, any election (other than the
      election to file a separate return) made by either spouse in his separate
      return for such taxable year with respect to the treatment of any income,
      deduction, or credit of such spouse shall not be changed in the making
      of the joint return where such election would have been irrevocable if
      the joint return had not been made. . . .

Paragraph (2) bars a joint return for a married taxpayer who initially filed a separate
return if either spouse receives a notice of deficiency and files a petition with the Tax
Court. § 6013(b)(2)(B).

       The issue is whether a “separate return” as used in 6013(b)(1) includes a head-
of-household return. If Ibrahim’s head-of-household return was a “separate return”
under § 6013(b)(1), he could not make a joint return because he received and
challenged the notice of deficiency. However, if his head-of-household return was
not a separate return, the limitations of § 6013(b)(2)(B) do not apply.

       To interpret the Code, this court begins “‘with the language of the statute.’”
Knight v. Comm’r, 552 U.S. 181, 187 (2008), quoting Williams v. Taylor, 529 U.S.
420, 431 (2000). See also United States v. S.A., 129 F.3d 995, 998 (8th Cir. 1997)
(noting unambiguous language is “conclusive absent clear legislative intent to the
contrary”). This court examines “the clause at issue and the statute as a whole.”
United States v. Ashcraft, 732 F.3d 860, 862 (8th Cir. 2013). See also Robinson v.
Shell Oil Co., 519 U.S. 337, 341 (1997) (“The plainness or ambiguity of statutory
language is determined by reference to the language itself, the specific context in
which that language is used, and the broader context of the statute as a whole.”).

       The “‘normal rule of statutory construction [is] that identical words used in
different parts of the same act are intended to have the same meaning.’” Comm’r v.
Lundy, 516 U.S. 235, 250 (1996), quoting Sullivan v. Stroop, 496 U.S. 478, 484

                                          -3-
(1990); Comm’r v. Keystone Consol. Indus., Inc., 508 U.S. 152, 159 (1993)
(“Further, the Code must be given as great an internal symmetry and consistency as
its words permit.”) (internal quotation marks omitted). It is the “duty” of this court
“to find that interpretation which can most fairly be said to be imbedded in the statute,
in the sense of being most harmonious with its scheme and with the general purposes
that Congress manifested.” Comm’r v. Engle, 464 U.S. 206, 217 (1984) (internal
quotation marks omitted). “Common sense should play a part in all court decisions,
including those involving the construction of tax statutes.” Glaze v. United States,
641 F.2d 339, 344 (5th Cir. 1981), citing Comm’r v. Meyer, 139 F.2d 256, 259 (6th
Cir. 1943), also adopted as circuit law by Bonner v. City of Prichard, 661 F.2d 1206
(11th Cir. 1981).

       Section 6013(b)(1) does not define “separate return,” although it uses the term
four times. The Commissioner argues that a separate return is any return except a
joint return. Ibrahim argues, in the words of the Fifth Circuit, that “the word
‘separate’ can only be deemed to refer to the filing status of ‘married, filing
separately.’” Glaze, 641 F.2d at 342. Viewed alone, § 6013(b)(1) is ambiguous. In
order to determine the meaning of “separate return” in § 6013(b)(1), this court
considers the Code as a whole and the legislative history of § 6013.

                                           II.

      “Separate return” appears numerous times throughout the Code. The Code first
uses “separate return” in the subheading of § 1(d): “Married individuals filing
separate returns.” The body of the subsection states, “There is hereby imposed on
the taxable income of every married individual (as defined in section 7703) who does
not make a single return jointly with his spouse under section 6013, a tax determined
in accordance with the following table . . . .” § 1(d). In the first section of the Code,
which imposes income tax, “separate returns” means “married filing separately.”
Similarly, § 6654(d)(1)(C)(ii)—titled “Separate returns”—applies only “[i]n the

                                          -4-
case of a married individual (within the meaning of section 7703) who files a separate
return . . . .”

       Both sections 1(d) and 6654(d)(1)(C)(ii) require the individual be married
within the meaning of § 7703 to file a separate return. Section 7703, which addresses
the determination of marital status, also uses “separate return.” Section 7703(a) gives
the general rule for “married.” Section 7703(b) creates a special rule: An abandoned
spouse—“who is married,” “files a separate return,” and supports a child—is
considered not married. § 7703(b)(1)-(3). After an abandoned spouse “who files a
separate return” meets the other criteria in § 7703(b)(1)-(3), the spouse qualifies for
unmarried head-of-household status2 instead of married-filing-separately status. See
§ 21(e)(4)(A) (using same language “who files a separate return”), interpreted by
Treas. Reg. § 1.21-3 (describing § 21(e)(4) as synonymous with § 7703(b)). But cf.
Habersham-Bey v. Comm’r, 78 T.C. 304, 317 (1982) (interpreting what is now §
7703(b), ruling that “who files a separate return” is a requirement that the taxpayer
“be treated as filing separately for income tax purposes because a joint return was not
filed with the taxpayer’s spouse, rather than as a strict requirement that the taxpayer
in fact file a separate return”). “Separate return” in § 7703(b) refers to a married-
filing-separately return made by a taxpayer who is considered married. Conversely,
head-of-household taxpayers, considered “not married,” may not make joint or
separate returns.3


      2
        In order to file as head of household, the taxpayer must be considered not
married. §§ 2(b)(1) (An individual is head of household “if, and only if, such
individual is not married at the close of his taxable year . . . .” (Emphasis added)),
2(c) (“[A]n individual shall be treated as not married at the close of the taxable year
if such individual is so treated under the provisions of section 7703(b).” (Emphasis
added)).
      3
        See 2014 IRS Pub. 501, “Exemptions, Standard Deduction, and Filing
Information,” at 6, available at http://www.irs.gov/pub/irs-pdf/p501.pdf (“In general,
your filing status depends on whether you are considered unmarried or married.”);
                                         -5-
       Other sections of the Code follow suit. Section 36 (first-time homebuyer
credit) states, “Married individuals filing separately.--In the case of a married
individual filing a separate return, subparagraph (A) shall be applied by substituting
‘$4,000’ for ‘$8,000’.” § 36(b)(1)(B). See also § 1400C(e)(1)(A) (first-time
homebuyer credit for District of Columbia). Section 6012(a)(1)(A) (persons required
to make returns of income) lists exemption amounts for individuals filing as: not
married, head-of-household, surviving spouse, or jointly. § 6012 (a)(1)(A)(I)-(iv).
Section 6012(a)(1)(A) expressly distinguishes a separate return from the enumerated
statuses, providing that “such spouse” who makes “a separate return” is not entitled
to a special exemption amount.

       Notably, even where the Code does not expressly denote that only married
individuals can file a separate return, the Commissioner has issued guidance that
“separate return” still means “married filing separately.” For example, §
6015(d)(3)(a) (relief from joint and several liability) addresses allocations to innocent
spouses as “if the individuals had filed separate returns.” While there is no qualifier
denoting marriage as a requirement to file “separate returns,” the Internal Revenue
Manual—a comprehensive guide for IRS employees—uses “married filing separate”
to explain the allocation in § 6015(d)(3)(a). See Internal Revenue Manual “Relief
f r o m J o i n t Liab i l i t y” § 2 5 . 1 5 . 1 . 2 .3 a n d . 4 , a v a i l a b l e a t
http://www.irs.gov/irm/part25/irm_25-015-001.html (“The account should be




2014 IRS Pub. 504, “Divorced or Separated Individuals,” at 3, available at
http://www.irs.gov/pub/irs-pdf/p504.pdf (“If you are unmarried, your filing status is
single or, if you meet certain requirements, head of household or qualifying
widow(er). If you are married, your filing status is either married filing a joint return
or married filing a separate return.”); 2014 IRS Pub. 17, at 21, 228 available at
http://www.irs.gov/pub/irs-pdf/p17.pdf (“If you qualify to file as head of household
instead of married filing separately . . . .”).
                                           -6-
adjusted to reflect a married filing separate return being filed by both spouses.”).4 In
these sections—and other sections cited in the Appendix at the end of this
opinion—“separate return” means a “married filing separately” return.

       Throughout the Code, a “separate return” is an option only for “married
individuals,” “spouses,” or “husband and wife.” The Commissioner argues that the
main section at issue in this case—§ 6013(b)(1)—should be interpreted differently
because it uses “individual” without any such qualifier, thus implying any person
filing a return. This argument fails, as § 6013(b)(1) includes the following qualifiers
to delineate “separate return”: (1) “if an individual has filed a separate return for a
taxable year for which a joint return could have been made by him and his spouse,”
(2) “the separate return of either spouse,” and (3) “made by either spouse in his
separate return.” (Emphases added).

       Because the Code consistently uses “separate return” to exclusively mean
“married filing separately,” the identical words “separate return” have the same
meaning in § 6013(b)(1). See Lundy, 516 U.S. at 250. To interpret otherwise would
contradict the plain language and harmony of the Code. See Engle, 464 U.S. at 217.
Interpreting the Code as a whole, § 6013(b)(1) does not include a head-of-household
return as a separate return. See Morgan v. Comm’r, 807 F.2d 81, 85 (6th Cir. 1986)
(“Use of the word ‘separate’ can only be deemed to refer to the filing status of
‘married, filing separately.’”); Glaze, 641 F.2d at 342 (§ 6013 “was never intended
to cover situations . . . where a taxpayer erroneously lists his status as single rather
than married”). Cf. Phillips v. Comm’r, 851 F.2d 1492, 1497 (D.C. Cir. 1988)
(holding that the “clear wording of” § 6013(a) allows spouses to file either separate


      4
       While the IRM may not bind the Commissioner, it does show the meaning of
“separate return” used in everyday tax administration. See Speltz v. Comm’r, 124
T.C. 165, 178 (2005) aff’d, 454 F.3d 782, 785 & n.2 (8th Cir. 2006) (using IRM to
interpret Code section).
                                          -7-
or joint tax return, that § 6013(b) applies when spouses file a joint return after a
separate return, and thus § 6013(b) does not apply when no return has been filed).

                                          III.

      The legislative history supports this definition of “separate return.” See S.A.,
129 F.3d at 998. “The predecessor of section 6013(b) of the Code was enacted to
enable married persons to correct elections originally made in the ‘absence of
informed tax knowledge not possessed by the average person.’” Rev. Rul. 83-183,
1983-2 C.B. 220, 221 (1983) (quoting S. Rep. No. 82-781 (1951), reprinted in 1951
U.S.C.C.A.N. 1968, 2018-19). See also 97 Cong. Rec. 11,871-78 (daily ed. Sept. 19,
1951) (statement of Sen. George), reprinted in 1951 U.S.C.C.A.N. 2099, 2101-02
(discussing head-of-household and separate returns); Glaze, 641 F.2d at 342 (“It is
clear that Section 6013 was enacted as a matter of legislative grace to permit married
taxpayers to escape the adverse financial consequences resulting from an injudicious
election to initially file separate returns rather than a single joint return.”).

        Congress created § 6013(b) to allow taxpayers to switch to a joint return after
initially electing to file as married filing separately—either of which are proper
elections. The purpose of allowing this switch was to relieve taxpayers from
overpaying their taxes due to an improvident initial election between these two filing
statuses. S. Rep. No. 82-781, 2018-19. Without § 6013, a (proper) married-filing-
separately return could not be amended once it was filed. See id. at 2018 (“[M]arried
taxpayers may file either separate returns or a single joint return. The election, once
made, as to which type of return to file is binding with respect to the taxable year for
which the return is filed.”) “Overpayment of tax may be recovered regardless of
whether it resulted from a mistake of fact or of law,” and courts should allow refunds
to avoid placing hardship upon the taxpayer, unless the plain language of the section
states otherwise. Glaze, 641 F.2d at 343.


                                          -8-
       Section 6013(b)(2) applies only after the taxpayer first files as married filing
separately and then amends his or her initial election to married filing jointly.
However, Ibrahim did not ever make an election to file as married filing separately.
See Morgan, 807 F.2d at 85 (finding § 6013 “requires a previous election by a
married person. That this is a foundational threshold to any application of Section
6013 is apparent from the language contained in the statute itself, the regulations, the
legislative history and even the appellant’s brief”). He now seeks a refund for his
overpayment in his mistaken head-of-household return. To prohibit him from doing
so, when he has yet to make an election, goes against the plain language and purpose
of the section.

       The Commissioner believes that “separate return” cannot mean only “married
filing separately” because when § 6013 was enacted in 1951, “married filing
separately” status did not exist. See Revenue Act of 1951, Pub. L. No. 82-183, §
312, 65 Stat. 452, 488-90 (1951) (enacting predecessor to § 6013); Tax Reform Act
of 1969, Pub. L. No. 91-172, § 803(a), 83 Stat. 487, 681-82 (1969) (enacting separate
tax schedules for married taxpayers filing separately). The Commissioner is
incorrect. Form 1040 for 1951 lists “married person filing separately” in its tax table
(with the same rate as single taxpayers). U.S. Individual Income Tax Return for
Calendar             Year         1951,         at     4,      available            at
http://www.irs.gov/pub/irs-prior/f1040--1951.pdf.             The 1952 tax-form
instructions—interpreting the 1951 Act—repeatedly use “separate returns” and allow
only married taxpayers to file a “separate return,” with different directions for head-
of-household taxpayers. These Are Your Income Tax Forms for 1952, at 4,
available at http://www.irs.gov/pub/irs-prior/i1040--1952.pdf. Even in 1952,
“separate return” did not apply to those filing as head of household.

       The Commissioner also invokes Revenue Ruling 83-183. “Although not
binding on this court, when a Revenue Ruling reflects a longstanding and reasonable
interpretation of the agency’s regulations, the Ruling attracts substantial judicial

                                          -9-
deference.” Morehouse, 769 F.3d at 620. The Revenue Ruling says that “the
reference in section 6013(b) to the prior filing of a separate return, which was taken
verbatim from section 51(g) of the Internal Revenue Code of 1939, should be viewed
as a reference to the filing of any non-joint return under section[] 1(b) (head of
household) . . . .” Rev. Rul. 83-183, at 221. See also I.R.S. Chief Counsel Notice
CC-2006-010, 2006 WL 587325 (Mar. 2, 2006) (disagreeing with Glaze). The
Revenue Ruling’s interpretation unreasonably includes head-of-household returns
(which consider taxpayers not married) as separate returns in § 6013, which applies
to married taxpayers. The Revenue Ruling does not overcome the Code’s plain
language that “separate return” refers only to married filing separately. See §§ 1(d),
6654(d)(1)(C)(ii), 7703(b).

       Since Ibrahim did not file a separate return within the meaning of § 6013(b)(1),
section 6013(b)(2)(B) does not prohibit him from amending his status to married
filing jointly. Thus, Ibrahim is entitled to the resulting credit and refund. See §§
6511(b)(2), 6512(b)(3)(B); Lundy, 516 U.S. at 241 (considering a “hypothetical
claim for refund filed ‘on the date of the mailing of the notice of deficiency,’” noting
that “a taxpayer who seeks a refund in the Tax Court, like respondent, does not need
to actually file a claim for refund with the IRS; the taxpayer need only show that the
tax to be refunded was paid during the applicable look-back period”).5

      5
        Contrary to the dissenting opinion, taxpayers do not need a separate Code
section authorizing amendments to returns. Section 6511 (and IRS regulations)
satisfy this “first step” by allowing taxpayers to correct their filing status through
Form 1040X. Treas. Reg. § 301.6402-3 (a)(2), (5); United States v. Jirak, 728 F.3d
806, 809 n.2 (8th Cir. 2013) (“Form 1040X is used to report changes and corrections
to a filed return.”). See also 2014 IRS Pub. 17, at 17, available at
http://www.irs.gov/pub/irs-pdf/p17.pdf (“You should correct your return if, after you
have filed it, you find that: . . . (4) You should have claimed a different filing
status.”); 2014 Form 1040X, “Amended U.S. Individual Income Tax Return,”
available at http://www.irs.gov/pub/irs-pdf/f1040x.pdf. (Ibrahim qualified for a joint
return and, in accordance with Lundy, did not need to file a 1040X after receiving a
deficiency notice.)
                                         -10-
                                     *******

      The decision of the Tax Court is reversed and remanded.

BYE, Circuit Judge, dissenting.

      I disagree that Revenue Ruling 83-183’s interpretation of § 6013 is an
unreasonable interpretation. Instead, for purposes of § 6013, I believe it is reasonable
to construe any non-joint returns, including head-of-household returns, as separate
returns. I therefore respectfully dissent.

       As the Supreme Court provided in Engle, the duty of an appellate court in
interpreting statutory language is “to find that interpretation which can most fairly be
said to be imbedded in the statute, in the sense of being most harmonious with its
scheme and with the general purposes that Congress manifested.” Comm’r v. Engle,
464 U.S. 206, 217 (1984) (internal citations omitted). The majority concludes
because Ibrahim’s head-of-household return does not constitute a separate return
within the meaning of § 6013(b)(1), § 6013(b)(2)(B) does not prohibit him from
amending his status to married filing jointly and he is entitled to the resulting credit
and refund under § 6511.

       When Congress created § 6013(b)(1) and § 6511, it created a two-step process
– step one is to amend to a joint return under § 6013(b)(1) and step two is then to use
that joint return as the operative return to seek a credit or refund under § 6511.
Congress also provided in § 6013(b)(3)(B) when a joint return is deemed filed for
purposes of § 6511 and its period of limitation. What is lacking from the majority’s
conclusion is support for the first step of the analysis – how the Code provides,
without the operation of § 6013(b)(1), the ability of Ibrahim to amend his return to
married filing jointly or when his amended joint return, which in this case would also
implicate his spouse, was deemed filed for purposes of § 6511. Ibrahim also fails to

                                         -11-
cite applicable Code provisions on appeal. If Congress intended for taxpayers to skip
the first step of amending and simply seek a credit or refund under § 6511, it begs the
question as to why Congress would have created § 6013(b)(1) at all. Moreover, the
Supreme Court has recognized the Code does not generally “provide either for a
taxpayer’s filing, or for the Commissioner’s acceptance, of an amended return;
instead, an amended return is a creature of administrative origin and grace.”
Badaracco v. Comm’r, 464 U.S. 386, 393 (1984). In the case of amending to a joint
return, however, Congress specifically created § 6013(b)(1) for taxpayers.

       Further, since there is no Code provision other than § 6013(b)(1) which allows
for the amendment to a joint return, then, under the majority’s interpretation,
§ 6013(b)(1) would operate as a narrow exception available to only those taxpayers
who initially filed a married filing separately return to amend their returns. Any
individual who initially files anything other than a married filing separately return
would be excluded from the protections for amending afforded by § 6013(b)(1). This
narrow interpretation does not support Congress’s purpose in creating § 6013(b)(1),
which was to provide a means for taxpayers to amend their returns to joint returns to
escape adverse financial consequences. Glaze v. United States, 641 F.2d 339, 342
(1st Cir. 1981). A more inclusive interpretation of an “individual [who] has filed a
separate return” within § 6013(b)(1) does, however, serve Congress’s purpose and
would have allowed Ibrahim to amend his head-of-household return to a joint return
if he had not fallen within § 6013(b)(2)(B). Without reading § 6013(b)(1) to have a
more expansive reach, taxpayers are therefore left without the mechanism Congress
created to amend their returns to married filing jointly. The IRS’s interpretation in
Revenue Ruling 83-183 is consistent with the Congressional purpose and provides
the opportunity for a greater number of taxpayers to amend to a joint return.

      Additionally, the way in which Congress drafted § 6013(b)(1) bolsters this
conclusion. Although the Code includes “separate return” in numerous locations, see
ante at 4-6, in the locations which include a phrase similar to that found in
§ 6013(b)(1), all of those locations except two, including in § 6013(b)(1), include a

                                         -12-
qualifier prior to the word “individual” which indicates it is a “married individual”
who is filing the separate return. By contrast, § 6013 merely includes the word
“individual.” As used elsewhere in the Code, “individual” connotates a broader
meaning and includes both those who are married and unmarried. See 26 U.S.C.
§ 6012(a). Further, the filing status of “married filing separately” is defined as
“married individuals filing separate returns,” not “individuals filing separate returns.”
26 U.S.C. § 1(d).

        Moreover, the majority’s reliance on the Internal Revenue Manual (IRM) to
interpret § 6015(d)(3)(a), the other section which references individuals rather than
married individuals filing separate returns, is misplaced. Although the IRM interprets
this phrase as a “married filing separate return,” “[i]t is universally held that the IRM
does not have the force of law, does not confer rights on taxpayers, and is not binding
on the IRS in litigation with taxpayers.” United States v. Meisner, No. 8:05CV100,
2007 WL 1290088, at *7 (D. Neb. May 2, 2007) (citing Fargo v. Comm’r, 447 F.3d
706, 713 (9th Cir. 2006); Qureshi v. United States, 67 Fed. Cl. 783, 788 (2005);
Carlson v. United States, 126 F.3d 915, 922 (7th Cir. 1997); Groder v. United States,
816 F.2d 139, 142 (4th Cir. 1987); United States v. Horne, 714 F.2d 206, 207 (1st Cir.
1983); United States v. Will, 671 F.2d 963, 967 (6th Cir. 1982); Wood v. Comm’r (In
re Wood), 328 B.R. 880, 887-88 (Bankr. S.D. Fla. 2005); Cennamo v. United States
(In re Cennamo), 147 B.R. 540, 543 (Bankr. C.D. Cal. 1992)). Provisions contained
in the IRM “only govern the internal affairs of the Internal Revenue Service.” United
States v. McKee, 192 F.3d 535, 540 (6th Cir. 1999) (internal quotation marks
omitted).

       The IRM’s interpretation of the phrase in § 6015(d)(3)(A) also conflicts with
the IRS’s interpretation of the phrase in Revenue Ruling 83-183. Unlike provisions
of the IRM, revenue rulings are the “I.R.S.’s official interpretation about how the
laws apply to a set of facts[,]” Peterson v. United States, 6 F. App’x 547, 549 (8th Cir.
2001), and “[a]lthough [they] do not have the force of law, they are entitled to
respectful consideration, and are to be given weight as expressing the studied view

                                          -13-
of the agency whose duty it is to carry out the statute,” North Dakota State University
v. United States, 255 F.3d 599, 603 n.6 (8th Cir. 2001) (internal quotation marks
omitted). Moreover, the IRS considers revenue rulings as “authoritative and
binding.” Bankers Life and Cas. Co. v. United States, 142 F.3d 973, 978 (7th Cir.
1998); see also 26 C.F.R. § 601.201. Consequently, more weight should be given to
the interpretation found in Revenue Ruling 83-183 than the provision cited by the
majority in the IRM because it is a revenue ruling which interprets the specific Code
section at issue in this case.

        Lastly, I also disagree with the majority’s conclusion that the Code consistently
uses “separate return” to exclusively mean “married filing separately.” In
§ 7703(b)(1), the Code references “an individual who is married . . . and who files a
separate return.” If “separate return” refers solely to the status of “married filing
separately,” it would be superfluous for the subsection to indicate the individual is
also married; instead, the subsection would merely need to read “an individual who
files a separate return.”

      For these reasons, I would affirm the decision of the Tax Court.
                      ______________________________




                                          -14-
                                  Appendix


“Separate return” appears in:     IRS Interpretation:
§ 21(e)(4); § 129(a)(2)(A), (C)   2014 Instructions for Form 2441, “Child and
                                  Dependent Care Expenses,” at 2, available at
                                  http://www.irs.gov/pub/irs-pdf/i2441.pdf (“If
                                  your filing status is married filing separately
                                  and all of the following apply, you are
                                  considered unmarried . . .”). See also 2014
                                  IRS Pub. 503, “Child and Dependent Care
                                  Expenses,” at 4, available at
                                  http://www.irs.gov/pub/irs-pdf/p503.pdf
                                  (credit unavailable to taxpayers with married-
                                  filing-separately status). [§ 21(e)(4) contains
                                  same language as § 7703(b).]
§ 22(c)(2)(A)(iii), (d)(3)        2014 IRS Pub. 524, “Credit for the Elderly or
                                  the Disabled,” at 5, 6, 7, 9, available at
                                  http://www.irs.gov/pub/irs-pdf/p524.pdf
                                  (differentiating “head of household” from
                                  “married filing separately”)




                                     -15-
§ 24(b)(2)      2014 IRS Pub. 17, at 22, 221, available at
                http://www.irs.gov/pub/irs-pdf/p17.pdf (“If
                you choose married filing separately as your
                filing status,” then “the child tax credit” is
                “reduced at income levels half those for a
                joint return,” and “Married filing separately -
                $55,000”); 2014 IRS Pub. 972, “Child Tax
                Credit,” at 3, available at
                http://www.irs.gov/pub/irs-pdf/p972.pdf
                (differentiating “head of household” from
                “married filing separately”)
§ 25A(g)(6)     2014 IRS Pub. 17, at 22, 223, available at
                http://www.irs.gov/pub/irs-pdf/p17.pdf
                (cannot claim credit if “[y]our filing status is
                married filing separately”); 2014 IRS Pub.
                970, “Tax Benefits for Education,” at 22,
                available at
                http://www.irs.gov/pub/irs-pdf/p970.pdf
                (Cannot claim lifetime learning credit if
                “[y]our filing status is married filing
                separately”).
§ 35(g)(5)(C)   2014 IRS Pub. 5121, “Affordable Care Act:
                Individuals & Families,” at 2, available at
                http://www.irs.gov/pub/irs-pdf/p5121.pdf
                (eligible for credit if you “do not file a
                Married Filing Separately return”)




                   -16-
§ 38(c)(6)(A)           2014 Instructions for Form 3800, “General
                        Business Credit,” at 3, available at
                        http://www.irs.gov/pub/irs-pdf/i3800.pdf
                        (“See section 38(c)(6) for special rules that
                        apply to married couples filing separate
                        returns”)
§ 55(b)(1)(A)(iii)      2014 Instructions for Form 6251,
                        “Alternative Minimum Tax–Individuals,” at
                        1, 9, available at
                        http://www.irs.gov/pub/irs-pdf/i6251.pdf (“if
                        married filing separately”)
§ 63(c)(6)(A), (e)(3)   2014 IRS Pub. 17, at 139, available at
                        http://www.irs.gov/pub/irs-pdf/p17.pdf
                        (“Your filing status is married filing
                        separately, and your spouse itemizes
                        deductions on his or her return.”)
§ 68(b)(1)(D)           2014 IRS Pub. 17, at 201, available at
                        http://www.irs.gov/pub/irs-pdf/p17.pdf
                        (itemized deduction limit lower “if married
                        filing separately”)
§ 135(d)(3)             2014 IRS Pub. 970, “Tax Benefits for
                        Education,” at 64, available at
                        http://www.irs.gov/pub/irs-pdf/p970.pdf
                        (“Your filing status is not married filing
                        separately”)
§ 151(d)(3)(B)          2014 IRS Pub. 17, at 25, available at
                        http://www.irs.gov/pub/irs-pdf/p17.pdf
                        (differentiating “head of household” from
                        “married individual filing a separate return”)

                           -17-
§ 163(h)(4)(A)(ii)   2014 IRS Pub. 936, “Home Mortgage
                     Interest Deduction,” at 2-4, available at
                     http://www.irs.gov/pub/irs-pdf/p936.pdf
                     (“Separate returns. If you are married filing
                     separately”)
§ 165(l)(5)(B)(ii)   2014 IRS Pub. 547, “Casualties, Disasters,
                     and Thefts,” at 4, available at
                     http://www.irs.gov/pub/irs-pdf/p547.pdf (“if
                     you are married filing separately”)
§ 179(b)(4)          2014 IRS Pub. 946, “How to Depreciate
                     Property,” at 20, available at
                     http://www.irs.gov/pub/irs-pdf/p946.pdf (“If
                     you are married, how you figure your section
                     179 deduction depends on whether you file
                     jointly or separately.”)
§ 194(b)(1)(B)(ii)   2014 IRS Pub. 535, “Reforestation
                     Expenses,” at 24, available at
                     http://www.irs.gov/pub/irs-pdf/p535.pdf (“if
                     married filing separately”)
§ 219(g)(3)-(4)      2014 IRS Pub. 17, at 123, available at
                     http://www.irs.gov/pub/irs-pdf/p17.pdf
                     (differentiating “married filing separately”
                     from “head of household”)
§ 222(d)(4)          2014 IRS Pub. 970, “Tax Benefits for
                     Education,” at 38, available at
                     http://www.irs.gov/pub/irs-pdf/p970.pdf
                     (cannot claim the tuition and fees deduction
                     if “[y]our filing status is married filing
                     separately”)

                        -18-
§ 408A(c)(3)(B)(ii)   2014 IRS Pub. 590-A, “Contributions to
                      Individual Retirement Arrangements
                      (IRAs),” at 39, 42, available at
                      http://www.irs.gov/pub/irs-pdf/p590a.pdf
                      (differentiating “married filing separately”
                      and living with spouse from “head of
                      household”)
§ 469(i)(5)           2014 IRS Pub. 925, “Passive Activity and
                      At-Risk Rules,” at 4, available at
                      http://www.irs.gov/pub/irs-pdf/p925.pdf (“if
                      you are married filing separately”)
§ 911(d)(9)(B)        2014 IRS Pub. 54, “Tax Guide for U.S.
                      Citizens and Resident Aliens Abroad,” at 8,
                      available at
                      http://www.irs.gov/pub/irs-pdf/p54.pdf (“if
                      you are married and file separately”)
§ 1044(b)(3)(A)       2014 IRS Pub. 17, at 109, available at
                      http://www.irs.gov/pub/irs-pdf/p17.pdf (“if
                      married filing separately”)
§ 1202(b)(3)(A)       2014 IRS Pub. 550, “Investment Income and
                      Expenses,” at 67, available at
                      http://www.irs.gov/pub/irs-pdf/p550.pdf
                      (“for married individuals filing separately”)




                         -19-
§ 1211(b)(1)      2014 IRS Pub. 17, at 22, available at
                  http://www.irs.gov/pub/irs-pdf/p17.pdf
                  (capital loss deduction limit for married
                  filing separately status); 2014 Instructions for
                  Schedule D, “Capital Gains and Losses,” at
                  D-3, available at
                  http://www.irs.gov/pub/irs-pdf/i1040sd.pdf
                  (“if married filing separately”)
§ 1398(c)         2014 IRS Pub. 908, “Bankruptcy Tax
                  Guide,” at 7, available at
                  http://www.irs.gov/pub/irs-pdf/p908.pdf
                  (“for a married individual filing separately”)
§ 1401(b)(2)(A)   IRS, “Topic 554 - Self-Employment Tax,”
                  available at
                  http://www.irs.gov/taxtopics/tc554.html (“for
                  a married individual filing a separate return”)
§ 1411(b)         IRS, “Questions and Answers on the Net
                  Investment Income Tax,” available at
                  http://www.irs.gov/uac/Newsroom/Net-Inves
                  tment-Income-Tax-FAQs (differentiating
                  “married filing separately” from “head of
                  household”)
§ 3101(b)(2)(B)   IRS, “Affordable Care Act Tax Provisions,”
                  available at
                  http://www.irs.gov/Affordable-Care-Act/Aff
                  ordable-Care-Act-Tax-Provisions (“for
                  married taxpayers who file separately”)




                     -20-
§ 6015(d)(3)-(4)   IRS Manual, “Relief from Joint Liability,” §
                   25.15.1.2.3 and .4, , available at
                   http://www.irs.gov/irm/part25/irm_25-015-0
                   01.html (“The account should be adjusted to
                   reflect a married filing separate return being
                   filed by both spouses.”). [Like § 6013(b)(1),
                   this section uses the term “individual”
                   without using the term “married.”]




                      -21-
