                       118 T.C. No. 24



                UNITED STATES TAX COURT



         THOMAS WILLIAM MCADAMS, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 12763-00.              Filed May 15, 2002.


     P married his wife (W) in 1947. P and W were not
legally separated or divorced. During 1998, W resided
in Boise, Idaho (Boise address). During 1998, P stayed
at the Boise address in excess of 30 days. P and W
maintained separate bedrooms at the Boise address.

     In 1998, P received $11,181.60 in Social Security
income. P filled out the Social Security Benefits
Worksheet associated with his 1998 tax return. P
listed $25,000 as his “base amount” because he was
married and believed that he lived apart from W for the
entire year. On his 1998 tax return, P claimed
“married filing separately” status, reported $11,181.60
of Social Security benefits, and reported $0 as the
taxable amount of his Social Security benefits.

     In the notice of deficiency, R increased P’s
interest income by $52 and reduced P’s “base amount” to
zero, thereby increasing the taxable amount of P’s
Social Security benefits.
                                 - 2 -

          Held: For purposes of sec. 86(c)(1)(C)(ii),
     I.R.C., “live apart” means living in separate
     residences. P and his wife lived in the same residence
     at least 30 days during the taxable year in issue.
     Accordingly, P did not live apart from his spouse at
     all times during the taxable year, and P’s “base
     amount” pursuant to sec. 86(c)(1), I.R.C., is zero.

          Held, further, sec. 86, I.R.C., is not
     unconstitutional.

     Thomas William McAdams, pro se.

     Kay Hill, for respondent.



     VASQUEZ, Judge:   Respondent determined a deficiency of

$1,106 in petitioner’s Federal income tax for 1998.    After

concessions,1 the issues for decision are:   (1) Whether

petitioner did not “live apart” from his spouse at all times

during 1998, and (2) whether section 862 is unconstitutional.

                         FINDINGS OF FACT

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.    At the time he filed the

petition, petitioner resided in Ninilchik, Alaska.

     As of the time of trial, petitioner was 74 years old and

retired from the U.S. military.    Petitioner has a bachelor’s



     1
        Petitioner concedes that his correct amount of interest
income for 1998 was $530 and not $478.64 as reported on his 1998
Federal individual income tax return.
     2
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue.
                                - 3 -

degree in social work and a master’s degree in human relations.

During his last 22 years in the military, he taught classes about

race relations and nuclear weapons at the Command General Staff

College in Fort Leavenworth, Kansas.

     In 1947, petitioner married Norma McAdams.    During the year

in issue and up to the date of trial, petitioner and Mrs. McAdams

were married.    As of the date of trial, petitioner and Mrs.

McAdams had not legally separated.

     During 1998, Mrs. McAdams resided at 4802 Shirley Avenue,

Boise, Idaho (Boise address).    Petitioner’s two children, four

grandchildren, and two great-grandchildren all reside in Boise,

Idaho.

     During 1998, petitioner used the Boise address as a mailing

address.   Petitioner received mail and telephone messages at the

Boise address.    Petitioner kept “things” at the Boise address.

     From approximately April 15 through October 15, petitioner

lived in Alaska.    During the rest of the year, petitioner resided

in “the lower 48”--i.e., in the continental United States.      When

in the lower 48, petitioner traveled in a “fifth-wheel” trailer

to Wyoming, Arizona, Utah, Nevada, and California.    When he was

in Boise, he stayed at the Boise address.

     During 1998, petitioner stayed at the Boise address in

excess of 30 days.    He parked his fifth-wheel trailer at the
                                 - 4 -

Boise address and slept inside the house located at the Boise

address.   Petitioner and Mrs. McAdams maintained separate

bedrooms at the Boise address.

     During 1998, petitioner’s main source of income was his

military retirement pay.   During 1998, petitioner also received

Social Security income in the amount of $11,181.60.   Petitioner

received a Form SSA-1099, Social Security Benefit Statement, for

1998 reporting “Benefits Paid in 1998” and “Net Benefits for

1998” in the amount of $11,181.60.

     Petitioner filed his 1998 Federal individual income tax

return claiming “Married filing separately” status.   When he

prepared his 1998 tax return, petitioner filled out the Social

Security Benefits Worksheet.   Petitioner listed $25,000 as his

“base amount” because he believed that he lived apart from his

spouse for the entire year.    On his return, petitioner reported

$11,181.60 of Social Security benefits and zero as the taxable

amount of his Social Security benefits.

     In the notice of deficiency, respondent increased

petitioner’s interest income by $52 and reduced petitioner’s

“base amount” to zero, thereby increasing the taxable amount of

petitioner’s Social Security benefits to $9,218.

                               OPINION

     Section 86 provides for the taxability of Social Security

benefits pursuant to a statutory formula.   If a taxpayer’s
                                - 5 -

“modified adjusted gross income” plus one-half of the Social

Security benefits received during the taxable year exceeds the

“base amount”, then a portion of the taxpayer’s Social Security

benefits are includable in gross income.    Sec. 86(a) through (d).

     A.   Base Amount and Living Apart at All Times During the
          Taxable Year

     Section 86(c)(1) provides that for purposes of section 86,

the term “base amount” means:

          (A) except as otherwise provided in this
     paragraph, $25,000,

          (B) $32,000 in the case of a joint return, and

          (C) zero in the case of a taxpayer who--

               (i) is married as of the close of the
          taxable year (within the meaning of section
          7703) but does not file a joint return for
          such year, and

               (ii) does not live apart from his spouse
          at all times during the taxable year.

     When he prepared his 1998 tax return, petitioner filled out

the Social Security Benefits Worksheet.    Petitioner listed

$25,000 as his “base amount” because he was married and believed

that he lived apart from his spouse for the entire year.

Respondent contends that petitioner did not live apart from his

wife at all times during the taxable year within the meaning of

section 86(c)(1)(C)(ii).   Whether a taxpayer did not “live apart”

from his spouse “at all times during the taxable year”, within
                               - 6 -

the meaning of section 86(c)(1)(C)(ii), is an issue of first

impression.3

     We do not find any ambiguity in the language “at all times

during the taxable year.”   “All” means “whole”, “entire”, “each

and every one”, or “each and every thing”.4   Webster’s II New

Riverside University Dictionary 93 (1994).

     Neither the statute nor the legislative history defines what

“live apart” means.   See S. Rept. 98-23, at 27 (1983), 1983-2

C.B. 326, 328; H. Conf. Rept. 98-47, at 122 (1983), 1983-2 C.B.

336, 340.   Similar language to that contained in section

86(c)(1)(C)(ii) is contained in sections 22(e)(1), 66(a)(2)(A),

152(e)(1)(A)(iii), 219(g)(4)(B), and 469(i)(5)(B)(ii).

Therefore, we look to the case law interpreting the phrase “live

apart” contained in those sections.

     In Costa v. Commissioner, T.C. Memo. 1990-572, in 1970 the

taxpayer and her husband purchased a residence located in

Fairfax, California (Fairfax residence).   In 1982, as a result of



     3
        The resolution of this issue does not depend on which
party has the burden or proof. We resolve this issue on the
basis of a preponderance of evidence in the record.
     4
        We note that this construction is supported by the
legislative history, which provides that the base amount is “zero
in the case of a married individual filing a separate return,
unless he or she lived apart from his or her spouse for the
entire taxable year”. S. Rept. 98-23, at 27 (1983), 1983-2 C.B.
326, 328 (emphasis added).
                                 - 7 -

marital problems, the taxpayer moved out of the Fairfax

residence.    During 1982, the taxpayer’s husband also moved out of

the Fairfax residence.    In 1983, the taxpayer resumed residing at

the Fairfax residence.    In 1984, the taxpayer’s husband visited

the Fairfax residence several times on an intermittent basis, he

used the Fairfax residence address for receiving mail, he kept

documents and clothes there, he received telephone messages

there, he had a key to the Fairfax residence, and he came and

went at his convenience.    The taxpayer did not file a joint

return with her husband for 1984.    The taxpayer did not obtain a

formal termination or separation, and as of the time of trial the

taxpayer was still legally married to her husband.

     We concluded that, for purposes of section 66(a), the

taxpayer “did not live apart at all times during the year as

required by statute” for 1984.     Costa v. Commissioner, T.C. Memo.

1990-572.    We based our holding on the fact that during 1984 the

taxpayer’s husband intermittently resided at the Fairfax

residence.    Id.

     In Dawkins v. Commissioner, T.C. Memo. 1991-225, during 1987

the taxpayer and his wife were in the process of obtaining a

divorce.    During 1987, the taxpayer had not obtained a legal

separation, and the taxpayer, his wife, and his three children

all resided in the same household.       The taxpayer and his wife,

however, maintained separate quarters under the same roof.
                                 - 8 -

       We concluded that, for purposes of section 152(e), the

taxpayer and his wife were not “living apart” because they lived

under the same roof.     Dawkins v. Commissioner, T.C. Memo. 1991-

225.    In determining what “living apart” meant, we referred to

several cases that considered what living apart meant in the

context of alimony payments and being separated (sections 71 and

215).    Id.   In those cases, courts held that “living apart” meant

living in separate residences.     Lyddan v. United States, 721 F.2d

873, 876 (2d Cir. 1983); Washington v. Commissioner, 77 T.C. 601,

605 (1981) (a Court-reviewed decision, disagreeing with the U.S.

Court of Appeals for the Eighth Circuit’s holding in Sydnes v.

Commissioner, 577 F.2d 60 (8th Cir. 1978), revg. 67 T.C. 170

(1977), that taxpayers could be treated as separated when both

are living under the same roof); Coltman v. Commissioner, T.C.

Memo. 1991-127, affd. 980 F.2d 1134 (7th Cir. 1992).

       Additionally, we have explored the concept of living apart

as it related to sections 2 and 7703.    As it relates to these

sections, we held that living apart required geographical

separation and living in separate residences.     Chiosie v.

Commissioner, T.C. Memo. 2000-117; Hopkins v. Commissioner, T.C.

Memo. 1992-326.

       Furthermore, prior to amendment by section 121 of the Tax

Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2109, section 85(b)

defined a “base amount” for purposes of computing the taxable
                                - 9 -

amount of unemployment compensation similarly to section

86(c)(1).   Section 1.85-1(b)(4), Income Tax Regs., which was

still in effect during the year in issue, provided:

     A taxpayer does not “live apart” from his or her spouse
     at all times during a taxable year if for any period
     during the taxable year the taxpayer is a member of the
     same household as such taxpayer’s spouse. A taxpayer
     is a member of a household for any period, including
     temporary absences due to special circumstances, during
     which the household is the taxpayer’s place of abode. A
     temporary absence due to special circumstances includes
     a nonpermanent absence caused by illness, education,
     business, vacation, or military service.

     We conclude that for purposes of section 86(c)(1)(C)(ii)

“living apart” means living in separate residences.

     Petitioner contends that because he and his wife maintained

separate bedrooms this is sufficient to find that they “lived

apart”.   We disagree.   See Dawkins v. Commissioner, supra.    We

decline to explore the quality of a marriage, or to infer some

form of constructive absence of one spouse, when the spouses live

under one roof.   See Lyddan v. United States, supra at 876;

Chiosie v. Commissioner, supra.

     Petitioner also argues that he merely “visited” his wife and

did not live with her.   In Costa v. Commissioner, supra, we

concluded that intermittent visits to the taxpayer’s home by the

taxpayer’s spouse were sufficient to find that the spouse and the

taxpayer did not live apart.   In the case at bar, petitioner’s

“visits” lasted in excess of 30 days.   Even if we term

petitioner’s stay at the Boise address a visit, petitioner
                                 - 10 -

resided in the same house with his wife during this time.

     We conclude that for purposes of section 86(c)(1)(C)(ii)

petitioner did not live apart from his spouse at all times during

the taxable year.     Accordingly, his “base amount” for 1998 was

zero.

     B.      Constitutionality

        Petitioner’s final argument is leveled at the

constitutionality of section 86.     In essence, petitioner

questions the fairness of section 86.     In San Antonio Indep. Sch.

Dist. v. Rodriguez, 411 U.S. 1, 41 (1973), the U.S. Supreme Court

noted that “No scheme of taxation, whether the tax is imposed on

property, income, or purchases of goods and services, has yet

been devised which is free of all discriminatory impact.”     We

have repeatedly held that section 86 does not suffer any

constitutional infirmities.      Thomas v. Commissioner, T.C. Memo.

2001-120; Clark v. Commissioner, T.C. Memo. 1998-280, affd.

without published opinion 187 F.3d 641 (8th Cir. 1999); Roberts

v. Commissioner, T.C. Memo. 1998-172, affd. without published

opinion 182 F.3d 927 (9th Cir. 1999).     Accordingly, we deny

petitioner’s constitutional claim.

        To reflect the foregoing,

                                            Decision will be entered

                                       for respondent.
