                       T.C. Memo. 1998-280



                     UNITED STATES TAX COURT



                JAMES LOGAN CLARK, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 18556-97.                    Filed August 3, 1998.



     James Logan Clark, pro se.

     Deanna R. Kibler, for respondent.



                       MEMORANDUM OPINION


     DINAN, Special Trial Judge:   This case was fully stipulated

under Rule 122 and was submitted pursuant to the provisions of

section 7443A(b)(3) and Rules 180, 181, and 182.1



     1
          Unless otherwise indicated, all section references are
to the Internal Revenue Code in effect for the taxable year in
issue. All Rule references are to the Tax Court Rules of
Practice and Procedure.
                                 - 2 -

     Respondent determined a deficiency in petitioner's Federal

income tax for 1995 in the amount of $1,395.

     The issue presented by petitioner is whether various

provisions of sections 86 and 6013 are unfair and

unconstitutional.

     The facts have been fully stipulated.   The stipulations of

fact and the accompanying exhibits are incorporated herein by

this reference.   Petitioner resided in Bonne Terre, Missouri, at

the time the petition was filed in this case.

     Petitioner and his former wife, Shirley Clark (Ms. Clark),

separated in September 1995 and began living apart at that time.

They were divorced in March 1996.    Despite petitioner's requests,

Ms. Clark refused to file a joint Federal income tax return with

him for 1995.

     Petitioner received Social Security benefits in the amount

of $11,064 during 1995.   He timely filed his 1995 return,

claiming the filing status of married filing separately.     On his

return, he reported the full amount of his Social Security

benefits for 1995 on line 13a.    He did not, however, include any

of his Social Security benefits in gross income on line 14.

     In the statutory notice of deficiency, respondent determined

that $9,404 of petitioner's Social Security benefits must be

included in his gross income.    Petitioner does not contest this

adjustment made by respondent pursuant to the provisions of

section 86.   Rather, he argues that section 86(c)(1)(C) and
                               - 3 -

(2)(C), which establishes, for purposes of calculating the

taxable amount of his Social Security benefits, a "base amount"

and an "adjusted base amount" of zero for taxpayers who were

married and lived together during the taxable year but did not

file jointly, and section 6013, which allows Ms. Clark to

unilaterally decide whether or not to file a joint return with

him, are unfair and unconstitutional.

     After reviewing the record, we find that respondent properly

determined that $9,404 of petitioner's Social Security benefits

for 1995 must be included in his gross income under section 86.

The record does not show that petitioner and Ms. Clark were

legally separated under a decree of divorce or of separate

maintenance by the end of 1995.   Sec. 7703(a)(2).   Petitioner

also stipulated that they lived together until September 1995.

Consequently, since petitioner did not file a joint return with

Ms. Clark for 1995, his "base amount" and his "adjusted base

amount" are both zero.   Sec. 86(c)(1)(C) and (2)(C); Rafter v.

Commissioner, T.C. Memo. 1991-349.

     As we informed petitioner at trial, this Court is one of

limited jurisdiction, and we must apply the laws as written by

Congress.   There is no provision in the Internal Revenue Code

which requires an individual taxpayer such as Ms. Clark to file a

joint return, which would make her jointly and severally liable

for the Federal income tax due on petitioner's individual income.

Sec. 6013(d)(3).   With respect to the effect that Ms. Clark's

refusal to file jointly with petitioner has on the taxability of
                               - 4 -

his Social Security benefits, we do not have the authority to

disregard the express provisions of a statute enacted by Congress

even where the result in a particular case may seem harsh.    See,

e.g., Everage v. Commissioner, T.C. Memo. 1997-373.

     In essence, petitioner questions the fairness of section 86.

However, this is not the proper forum to question the policy

considerations that impelled the enactment of this legislation.

“Normally, a legislative classification will not be set aside if

any state of facts rationally justifying it is demonstrated to or

perceived by the courts.”   United States v. Maryland Savings-

Share Ins. Corp., 400 U.S. 4, 6 (1970).   The legislative history

of section 86, as enacted by the Social Security Amendments of

1983, Pub. L. 98-21, sec. 121(a), 97 Stat. 80, demonstrates that

Congress had a valid and rational basis for establishing a base

amount of zero for married taxpayers who lived with their spouse

for any part of the taxable year and file separate returns:

          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; * * *

          The base amount is zero for married individuals
     filing separate returns because the committee believes
     that the family should be treated as an integral unit
     in determining the amount of social security benefit
     that is includible in gross income under this
     provision. If the base amount for these individuals
     were higher, couples who are otherwise subject to tax
     on their benefits and whose incomes are relatively
     equally divided would be able to reduce substantially
     the amount of benefits subject to tax by filing
     separate returns. [S. Rept. 98-23, at 27 (1983), 1983-
     2 C.B. 326, 328.]
                                 - 5 -

     Congress carried forward this rationale when it amended

section 86 for 1994 and succeeding taxable years and established

an adjusted base amount of zero for married taxpayers who file

separate returns and do not live apart for the entire taxable

year.   Omnibus Budget Reconciliation Act of 1993, Pub. L. 103-66,

sec. 13215(b), 107 Stat. 312, 476.

     Petitioner argues that the legislative history quoted above

shows that Congress did not intend to eliminate the Social

Security "tax base" of taxpayers such as himself and Ms. Clark

because his income for 1995 was five times greater than her

income for 1995.   We recognize 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.’”    Druker v. Commissioner, 77 T.C. 867,

872 (1981) (quoting San Antonio Indep. Sch. Dist. v. Rodriguez,

411 U.S. 1, 41 (1973)), affd. in part on this issue and revd. in

part on another issue 697 F.2d 46 (2d Cir. 1982).       There is

simply no statutory exception to the plain language of section

86(c)(1)(C) and (2)(C).    We hold that sections 86 and 6013 do not

suffer any constitutional infirmities and sustain respondent's

determination in this case.   See Roberts v. Commissioner, T.C.

Memo. 1998-172.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
