                       T.C. Memo. 2001-134



                     UNITED STATES TAX COURT



     ROSS GABLE CANSINO AND MARY ANN CANSINO, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5085-00.                        Filed June 8, 2001.


     Ross Gable Cansino and Mary Ann Cansino, pro sese.

     Gerald L. Brantley, for respondent.


                       MEMORANDUM OPINION

     ARMEN, Special Trial Judge:     Respondent determined a

deficiency in petitioners’ Federal income tax for the taxable

year 1996 in the amount of $1,530.
                                - 2 -

     The issue for decision is whether, by virtue of section

151(e),1 petitioners’ failure to provide Social Security numbers

for their children on their income tax return precludes the

allowance of deductions for dependency exemptions for the

children.    We hold that petitioners’ failure precludes the

allowance of the deductions.

Background

     This case was submitted fully stipulated under Rule 122, and

the facts stipulated are so found.      Petitioners resided in George

West, Texas, at the time that their petition was filed with the

Court.

     Petitioners are U.S. citizens who are husband and wife.

They were married in San Antonio, Texas, in October 1989, and

remained married throughout 1996, the taxable year in issue.

     Petitioners are the parents of four children: Katheryn A.

Cansino, born in October 1990; Elizabeth M. Cansino, born in

April 1993; Jesse R. Cansino, born in July 1994; and Mary V.

Cansino, born in August 1995.    All four children were born in

Houston, Texas, and are citizens of the United States.

     Petitioner Ross Gable Cansino and petitioner Mary Ann

Cansino each have Social Security numbers.     However, petitioners



     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for 1996, the taxable year in
issue, and all Rule references are to the Tax Court Rules of
Practice and Procedure.
                               - 3 -

have not applied for Social Security numbers on behalf of any of

their children, nor has any of their children received a Social

Security number.

     In August 1997, petitioners timely filed an income tax

return, Form 1040, for 1996.   On their return, petitioners

claimed deductions for dependency exemptions for their four

children.   Under the column for “Dependent’s social security

number”, petitioners wrote “none” opposite each of the four

children’s names.

     No taxpayer, other than petitioners, claimed deductions for

dependency exemptions for any of petitioners’ children for 1996.

     In February 2000, respondent issued a notice of deficiency

to petitioners determining a deficiency in their income tax for

1996.   The notice includes the following explanation for

respondent’s action:

     We are unable to allow the exemptions claimed for your
     three daughters and son for 1996. In order to claim an
     exemption for each of them, you must provide us with
     their social security numbers. If the children are
     unable to secure social security numbers and you wish
     to claim an exemption for them, then you must secure an
     individual taxpayer identification number.

     Respondent concedes that for 1996, petitioners are entitled

to deductions for dependency exemptions for their children but

for petitioners’ failure to include their children’s Social

Security numbers on petitioners’ return.
                               - 4 -

     Petitioners contend that their failure to include their

children’s Social Security numbers on their return is based on a

sincerely held religious belief that Social Security numbers are

universal numerical identifiers to be equated with the “mark of

the Beast” warned against in the Bible.   Petitioners also contend

that the requirement obligating a taxpayer to include a child’s

Social Security number on the taxpayer’s return is contrary to

the Equal Protection and Due Process Clauses of the 14th

Amendment to the Constitution, as well as the Due Process Clause

of the 5th Amendment.

Discussion

     As a preliminary matter, we note that deductions are

strictly a matter of legislative grace, and a taxpayer must

satisfy the specific requirements for any deduction claimed.     See

New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934).

     A taxpayer is entitled to a deduction for an exemption for

each child who qualifies as the taxpayer’s dependent under

sections 151 and 152.   See secs. 151(a), (c), 152.   However,

section 151(e) limits this allowance by providing that “No

exemption shall be allowed under this section with respect to any

individual unless the TIN of such individual is included on the

return claiming the exemption.”2


     2
       Sec. 151(e) was added to the Code by the Small Business
Job Protection Act of 1996 (SBJPA), Pub. L. 104-188, sec.
                                                   (continued...)
                                - 5 -

     Section 7701(a)(41) defines the term “TIN” for purposes of

the Internal Revenue Code to mean “the identifying number

assigned to a person under section 6109.”   Section 6109(d)

provides that the Social Security account number (SSN)3 issued to

an individual is the identifying number of the individual, except

as otherwise specified under the applicable regulations.

     The regulations provide that an individual required to

furnish a TIN must use the SSN unless the individual is not

eligible to obtain an SSN.    See sec. 301.6109-1(a)(1)(ii)(A) and

(B), Proced. & Admin. Regs.   Petitioners do not contend that



     2
      (...continued)
1615(a)(1), 110 Stat. 1755, 1853. Thus, sec. 151(e) is generally
effective for returns due on or after Sept. 19, 1996. See SBJPA
sec. 1615(d)(1), 110 Stat. 1853. However, in the case of returns
for taxable years beginning in 1996, a special rule governs the
effective date for sec. 151(e). In such case, “a taxpayer shall
not be required * * * to provide a taxpayer identification number
for a child who is born after * * * November 30, 1996, in the
case of a taxable year beginning in 1996.” SBJPA sec.
1615(d)(2), 110 Stat. 1853-1854. Accordingly, sec. 151(e) is
applicable in the present case because petitioners’ four children
were all born before Dec. 1, 1996, and petitioners’ 1996 return
was due after Sept. 19, 1996. See sec. 6072(a).
     3
       SSN’s are issued by the Social Security Administration
(SSA) of the U.S. Department of Health and Human Services upon
application by a citizen, a qualified alien, or by a parent on
behalf of a qualified child. See generally 20 C.F.R. secs.
422.101 through 422.112 (2000). The issuance of a SSN results in
the creation of (1) a record at the SSA of that person’s earnings
for purposes of determining the old-age, survivors, and
disability insurance and other benefits to which that the person
may be entitled, and (2) a unique numerical identifier for the
individual for use by a variety of governmental and private
entities. See Miller v. Commissioner, 114 T.C. 511, 513-514
(2000).
                               - 6 -

their children are not eligible to obtain an SSN.   Indeed, as

U.S. citizens, petitioners’ children are eligible to obtain

SSN’s.   See 20 C.F.R. secs. 422.104(a)(1), 422.107 (2001).

The applicable regulations further provide that “Any individual

who is duly assigned a social security number or who is entitled

to a social security number will not be issued an IRS individual

taxpayer identification number.”   Sec. 301.6109-1(d)(4), Proced.

& Admin. Regs.4

     In view of the foregoing, it is apparent that section 151(e)

is applicable to the facts of this case and, if not

unconstitutional, serves to bar allowance of deductions for

dependency exemptions for petitioners’ children.    Accordingly, we

turn now to petitioners’ constitutionally based contentions.     We

begin with the contention that compliance with section 151(e)

would contravene a sincerely held religious belief.

     This Court has previously upheld section 151(e) against

challenge that it violates the Free Exercise Clause of the 1st

Amendment to the Constitution and the Religious Freedom

Restoration Act of 1993 (RFRA), Pub. L. 103-141, 107 Stat. 1488.



     4
       Sec. 301.6109-1(d)(4), Proced. & Admin. Regs., is
effective for any return required to be filed after Dec. 31,
1995. See T.D. 8671, 1996-1 C.B. 314. Prior to the promulgation
of the regulation, the Commissioner issued individual taxpayer
identification numbers to taxpayers who objected to the use of
SSN’s on religious grounds. See Davis v. Commissioner, T.C.
Memo. 2000-210 n.2; Wolfrum v. Commissioner, T.C. Memo. 1991-370,
affd. without published opinion 972 F.2d 350 (6th Cir. 1992).
                               - 7 -

See Miller v. Commissioner, 114 T.C. 511 (2000); see also Kocher

v. Commissioner, T.C. Memo. 2000-238; Davis v. Commissioner, T.C.

Memo. 2000-210 (involving both RFRA and the Privacy Act of 1974,

5 U.S.C. sec. 552a (1994)).   Petitioners have given us no

persuasive reason to revisit any of those cases.    Accordingly, we

hold that petitioners’ religious belief does not negate the

requirement of section 151(e) that a taxpayer include on the

taxpayer’s return the SSN of any child whom the taxpayer claims

as a dependent.

     We turn now to petitioners’ contention that section 151(e)

violates the Equal Protection and Due Process Clauses of the 14th

Amendment to the Constitution, as well as the Due Process Clause

of the 5th Amendment.

     Petitioners assert that the requirement to provide SSN’s for

their children violates equal protection principles because it is

over-inclusive.   Petitioners argue that the SSN requirement

“should have been tailored so as to apply only to those

individual parents who are both likely to take the deductions for

their children not to all parents.”    Petitioners seek to have the

SSN requirement imposed for a distinct class of individuals,

namely: (1) Those involved in divorce proceedings; (2) paternity

suits; or (3) other domestic relations proceedings.   We disagree.

     Initially, we note that this Court has held that the 14th

Amendment does not apply to Federal tax statutes.   See Labay v.
                               - 8 -

Commissioner, 55 T.C. 6, 14 (1970), affd. per curiam 450 F.2d 280

(1971).   Thus, the Equal Protection and Due Process Clauses of

the 14th Amendment do not operate as a limitation on the taxing

power of the Federal Government.   See Hamilton v. Commissioner,

68 T.C. 603, 606 (1977).

     In contrast, the Due Process Clause of the 5th Amendment

constitutes a limitation on the taxing power of the Federal

Government.   The Due Process Clause provides protection against

Federal discriminatory action "so unjustifiable as to be

violative of due process".   Shapiro v. Thompson, 394 U.S. 618,

642 (1969); Bolling v. Sharpe, 347 U.S. 497, 499 (1954); Ward v.

Commissioner, 608 F.2d 599 (5th Cir. 1979), affg. per curiam T.C.

Memo. 1979-39. Further, the Due Process Clause of the 5th

Amendment has been held to incorporate guaranties analogous to

those of the Equal Protection Clause of the 14th Amendment.      See

Regan v. Taxation With Representation, 461 U.S. 540, 542 n.2

(1983); Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975);

Johnson v. Robison, 415 U.S. 361, 364-365 n.4 (1974); Bolling v.

Sharpe, supra at 499.

     In evaluating whether a statutory classification violates

equal protection, we generally apply a rational basis standard.

See Regan v. Taxation With Representation, supra at 547.    We

apply a higher standard of review (i.e., strict scrutiny) only if

it is found that the statute (1) impermissibly interferes with
                              - 9 -

the exercise of a fundamental right, such as freedom of speech,

or (2) employs a suspect classification, such as race.   See,

e.g., id.; Harris v. McRae, 448 U.S. 297, 322 (1980);

Massachusetts Bd. of Retirement v. Murgia, 427 U.S. 307, 312

(1976); San Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1,

16-17 (1973).

     Section 151(e) does not interfere with the exercise of a

fundamental right or employ a suspect classification.    See Miller

v. Commissioner, supra (holding that section 151(e) does not

violate the free exercise of religion).   Therefore, we need not

apply a higher level of scrutiny, but must decide whether the

statutory SSN requirement of section 151(e) bears a rational

relation to a legitimate governmental purpose.   See Regan v.

Taxation With Representation, supra at 547.   It is especially

difficult to demonstrate that no rational basis exists for a

classification in a revenue measure for which the presumption

that an act of Congress is constitutional is particularly strong.

See Black v. Commissioner, 69 T.C. 505, 507-508 (1977); Nammack

v. Commissioner, 56 T.C. 1379, 1385 (1971), affd. per curiam 459

F.2d 1045 (2d Cir. 1972).

     It is settled in this Court that the SSN requirement is the

least restrictive means of achieving the Government’s compelling

interests in implementing the Federal tax system in a uniform,

mandatory way and in detecting fraudulent claims to dependency
                              - 10 -

exemptions.   See Miller v. Commissioner, supra; Kocher v.

Commissioner, supra; Davis v. Commissioner, supra.     The SSN

serves as a mechanism in determining whether an SSN has been

claimed on another return for the year and serves as verification

of the existence of a claimed dependent.    See Miller v.

Commissioner, supra at 516-517.   Petitioners’ attempt at limiting

the applicability of section 151(e) is, therefore, without merit.

     In view of the foregoing, we hold that section 151(e) is not

unconstitutional as alleged by petitioners.    We hold further that

by virtue of that section, petitioners’ failure to provide Social

Security numbers for their children on their income tax return

precludes the allowance of deductions for dependency exemptions

for their children.   See Miller v. Commissioner, supra; Kocher v.

Commissioner, supra; Davis v. Commissioner, supra;.

     We have considered all of the other arguments made by

petitioners, and, to the extent that we have not specifically

addressed them, we find them to be without merit.

     To reflect the foregoing,



                                           Decision will be entered

                                    for respondent.
