                  T.C. Memo. 2000-132



                UNITED STATES TAX COURT



           ROBERT D. MUELLER, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 15289-98.                    Filed April 12, 2000.


     P failed to file Federal income tax returns for
the years 1986 through 1995. In the notice of
deficiency mailed to P, R determined that P’s proper
filing status for the years before the Court was
single. P was not married during the years in issue,
but was involved in a long-term relationship with a
same-sex partner, with whom he shared income and
assets. Held: marital classifications in the Federal
tax code are not unconstitutional; thus P was not
entitled to a filing status other than single. Held,
further, P is liable for the deficiencies determined by
R. Held,    further, P is liable for the additions to
tax under secs. 6651(a)(1) and 6654, I.R.C.



Robert D. Mueller, pro se.

Joseph T. Ferrick and William E. Bogner, for respondent.
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             MEMORANDUM FINDINGS OF FACT AND OPINION

     LARO, Judge:     On July 6, 1998, respondent issued a notice of

deficiency to petitioner determining deficiencies in and

additions to his Federal income taxes for the years and in the

amounts as follows:

                                       Additions to Tax
     Year     Deficiency        Sec. 6651(a)(1)     Sec. 6654
     1986      $12,067              $1,284             $165
     1987        6,675               1,172              225
     1988       28,231               7,058            1,816
     1989       25,087               6,272            1,697
     1990       32,125               8,031            2,103
     1991       33,841               8,460            1,934
     1992       32,282               8,071            1,408
     1993       31,642               7,587            1,265
     1994       23,751               4,617              928
     1995       23,426               4,503              944

     The issues for decision are:

     (1) Whether petitioner is entitled to a filing status other

than “single” in recognition of his claim that he has an

“economic partnership” with a same-sex individual with whom he

resided from 1989 to 1996; (2) whether petitioner is liable for

the additions to tax determined by respondent under section

6651(a)(1); and (3) whether petitioner is liable for the

additions to tax determined by respondent under section 6654.    We

hold for respondent on all issues.

     Unless otherwise stated, section references are to the

Internal Revenue Code in effect for the years in issue, and Rule
                                 - 3 -

references are to the Tax Court Rules of Practice and Procedure.

Dollar amounts are rounded to the nearest dollar.

                           FINDINGS OF FACT

     Petitioner resided in Chicago, Illinois, when he petitioned

the Court. Petitioner did not file Federal income tax returns for

any of the taxable years 1986 through 1995.    During these years

petitioner earned the bulk of his income by working as a computer

programmer/consultant for various companies and hospitals.

Petitioner also had small amounts of interest and capital gain

income in 1987.

     Petitioner made no estimated tax payments to the Internal

Revenue Service with respect to any of the years in issue.

However, petitioner had the following amounts withheld from his

wages:

                    Year         Withholding
                    1987           $1,986
                    1993            1,295
                    1994            5,283
                    1995            5,413

     Petitioner is homosexual.    In 1989, petitioner began a

relationship with another man whom petitioner describes as his

roommate and partner.   From 1989 through 1995 petitioner and his

partner resided together and shared assets and income.

Petitioner was not married (to his partner or anyone else) as of

December 31 for any of the taxable years 1986 through 1995.     In

the notice of deficiency mailed to petitioner, respondent
                                - 4 -

determined that petitioner's proper filing status for income tax

purposes for each year before the Court was single.      Accordingly,

respondent calculated the deficiencies and additions to tax using

the tax rates applicable to unmarried individuals pursuant to

section 1(c).

                               OPINION

     Petitioner does not challenge the facts on which

respondent’s determinations are based.1   Petitioner’s sole claim

in this case is that he should be accorded married, rather than

single, filing status on his tax returns for the years 1989 to

1995.    Petitioner does not claim to have ever been married.

Rather, petitioner argues that he had an "economic partnership"

with his roommate and that he was unconstitutionally denied the

opportunity to file a joint tax return with him in recognition of

such partnership.    Petitioner references a number of

constitutional provisions, but we understand the crux of

petitioner’s constitutional claim to be that the tax code’s

unequal or differential treatment between married taxpayers and

unmarried persons in an economic partnership constitutes a

violation of the due process notions implicit in the Fifth




     1
      At trial petitioner alleged for the first time that he had
suffered several theft losses during the years at issue.
However, petitioner failed to substantiate any such losses and
abandoned the argument on brief.
                               - 5 -

Amendment and of the equal protection standards incorporated

thereunder.2

     We have consistently denied constitutional challenges to

marital classifications in the tax code.   These have included

challenges brought by disadvantaged married taxpayers,3 see

DeMars v. Commissioner, 79 T.C. 247 (1982); Druker v.

Commissioner, 77 T.C. 867 (1981), affd. on this issue and revd.

in part 697 F.2d 46 (2d Cir. 1982); Brady v. Commissioner, T.C.

Memo. 1983-163, affd. without published opinion 729 F.2d 1445 (3d

Cir. 1984), as well as by disadvantaged singles, see Kellems v.

Commissioner, 58 T.C. 556 (1972), affd. per curiam 474 F.2d 1399

(2d Cir. 1973).   Other Federal courts have similarly upheld

marital classifications in the tax code.   See, e.g., Mapes v.

United States, 217 Ct. Cl. 115, 576 F.2d 896 (1978); Jansen v.

United States, 441 F. Supp. 20 (D. Minn. 1977), affd. per curiam

567 F.2d 828 (8th Cir. 1977); Johnson v. United States, 422 F.


     2
      The equal protection principles of the Fourteenth Amendment
are encompassed within the Fifth Amendment as applied to Federal
legislation. See, e.g., Weinberger v. Wiesenfeld, 420 U.S. 636,
638 n.2 (1975); Hamilton v. Commissioner, 68 T.C. 603, 606
(1977).
     3
      Being accorded married status under the tax code is not
always favorable. See U.S. General Accounting Office, Income Tax
Treatment of Married and Single Individuals (Pub. No. GAO/GGD-96-
175) (1996) (describing provisions in the tax code favoring
single taxpayers over married taxpayers and vice versa); see also
Cohen & Morris, “Tax Issues From ‘Father Knows Best’ To ‘Heather
Has Two Mommies’”, 84 Tax Notes 1309 (Aug. 30, 1999) (describing
the tax advantages and tax planning opportunities available to
nonmarried couples).
                               - 6 -

Supp. 958 (N.D. Ind. 1976), affd. per curiam sub nom. Barter v.

United States, 550 F.2d 1239 (7th Cir. 1977).

     Petitioner seeks to add a new gloss to these old challenges

by identifying singles who share assets and income (whom he

labels “economic partners”) as a distinct class of taxpayers

disadvantaged by marital classifications.   For the reasons set

forth below, we hold the tax code’s distinctions between married

taxpayers and unmarried economic partners to be constitutionally

valid.

     In evaluating whether a statutory classification violates

equal protection, we generally apply a rational basis standard.

See Regan v. Taxation With Representation, 461 U.S. 540, 547

(1983).   We apply a higher standard of review only if it is found

that the statute (1) impermissibly interferes with the exercise

of a fundamental right or (2) employs a suspect classification,

such as race.   See, e.g., id.; Harris v. McRae, 448 U.S. 297, 322

(1980).   Neither of these exceptions applies.

     Petitioner does not directly identify any fundamental right

impeded by the use of marital classifications in the tax code.

Petitioner cites commentary addressing the right to marry.

However, a law is considered to burden the right to marry only

where the obstacle to marriage imposed by the law operates to

preclude marriage entirely for a certain class of persons.     See

DeMars v. Commissioner, supra at 250.   The classifications at
                                - 7 -

issue in this case are a consequence, not a cause, of

petitioner’s nonmarried status, and thus do not burden the right

to marry.    See Druker v. Commissioner, 697 F.2d at 50.

     The marital classifications at issue also do not affect

petitioner as a member of a suspect class.    Petitioner claims

discrimination not as a homosexual but as a person who shares

assets and income with someone who is not his legal spouse.

Petitioner therefore places himself in a class that includes

nonmarried couples of the opposite sex, family members, and

friends.    We are aware of no authority that would render such

group a suspect class.4

     Under the rational basis standard, a challenged

classification is valid if rationally related to a legitimate

governmental interest.    See City of Cleburne v. Cleburne Living

Ctr., Inc., 473 U.S. 432, 440 (1985); City of New Orleans v.

Dukes, 427 U.S. 297, 303 (1976).    In Kellems v. Commissioner, 58

T.C. 556 (1972), affd. 474 F.2d 1399 (2d Cir. 1973), we addressed

the constitutionality of the application of single return rates



     4
      Petitioner claims that the Federal tax laws specifically
began to target homosexuals as a group after the enactment of the
Defense of Marriage Act (DOMA), Pub. L. 104-199, 110 Stat. 2419
(1996). That law defines “marriage” in any act of Congress
(which would include the Federal tax code) as a legal union
“between one man and one woman” as husband and wife. The DOMA
also defines the word “spouse” to mean only a person of the
“opposite sex” who is a husband or wife. We decline to pass on
the constitutionality of the DOMA because it was not effective
for the years at issue in this case.
                               - 8 -

without the income-splitting benefit available to married

taxpayers.   We held therein that the classification between

married and single taxpayers is founded upon a rational basis and

was a permissible attempt to account for the greater financial

burdens of married taxpayers and to equalize geographically their

tax treatment.5   See id. at 558-559.

     Our holding in Kellems is of no less application here.

Congress had a rational basis for adopting marital

classifications in the tax code.   That conclusion is not altered

by petitioner’s claim that there are additional classifications

that could have been made.   Undoubtedly, certain inequalities

persisted between married taxpayers and unmarried economic

partners following the enactment of the joint filing provisions.

However, legislatures have especially broad latitude in creating

classification and distinctions in tax statutes.   See Regan v.

Taxation With Representation, supra at 547.   Moreover, “reform

may take one step at a time, addressing itself to the phase of

the problem which seems most acute to the legislative mind.”

Williamson v. Lee Optical Co., 348 U.S. 483, 489 (1955).



     5
      Prior to 1948 each individual was taxed on his or her own
income regardless of marital status. However, under the Supreme
Court’s decision in Poe v. Seaborn, 282 U.S. 101 (1930), married
couples in community property States were permitted to split
their community income evenly for Federal tax purposes regardless
of the amounts each actually earned. See Kellems v.
Commissioner, 58 T.C. 556, 558-559 (1972), affd. per curiam 474
F.2d 1399 (2d Cir. 1973).
                               - 9 -

     While petitioner makes several arguments on policy and

sociological grounds, in the face of the cases cited above to the

contrary, they have no legal bearing on the issues in this case.

Whether policy considerations warrant narrowing of the gap

between the tax treatment of married taxpayers and homosexual and

other nonmarried economic partners is for Congress to determine

in light of all the relevant legislative considerations.   See

Druker v. Commissioner, 697 F.2d at 51.

     Accordingly, we sustain the deficiencies determined by

respondent.6

2.   Addition to Tax Under Section 6651(a)(1)

     Respondent determined additions to tax under section 6651(a)

for petitioner’s failure to file his 1986 through 1995 Federal

income tax returns.   In order to avoid this addition to tax,

petitioner must prove that his failure to file was:    (1) Due to

reasonable cause and (2) not due to willful neglect.   See sec.

6651(a); Rule 142(a); United States v. Boyle, 469 U.S. 241, 245



     6
      We also note that petitioner, as a nonfiler, would not be
entitled to the relief he now seeks even if he had been married
at the relevant times.   Married taxpayers who fail to file
returns are not entitled to application of the married filing
jointly tax rates. See Martinez v. Commissioner, T.C. Memo.
1998-199, affd. without published opinion (5th Cir. 1998);
Collins v. Commissioner, T.C. Memo. 1994-409; Ebert v.
Commissioner, T.C. Memo. 1991-629, affd. without published
opinion 986 F.2d 1427 (10th Cir. 1993); Hess v. Commissioner,
T.C. Memo. 1989-167; see also Phillips v. Commissioner, 86 T.C.
433, 441 n.7 (1986), affd. in part and revd. in part 851 F.2d
1492 (D.C. Cir. 1988).
                              - 10 -

(1985); United States v. Nordbrock, 38 F.3d 440 (9th Cir. 1994).

A failure to file a timely Federal income tax return is due to

reasonable cause if the taxpayer exercised ordinary business care

and prudence and, nevertheless, was unable to file the return

within the prescribed time.   See sec. 301.6651-1(c)(1), Proced. &

Admin. Regs.   Willful neglect means a conscious, intentional

failure to file or reckless indifference.   See United States v.

Boyle, supra at 245.

     Petitioner has offered no evidence to show that his failure

to file was due to reasonable cause and not willful neglect.    The

evidence is clear that petitioner’s actions were deliberate,

intentional, and in complete disregard of the statutes and

respondent’s regulations.   Petitioner made no attempt to file an

authentic tax return for any of the years at issue.

     Petitioner offers the “excuse” that his nonfiling was as an

act of “non-violent civil disobedience” on a “human rights

issue”.   As we stated in Klunder v. Commissioner, T.C. Memo.

1991-489: “Petitioner wants the best of both worlds, to civilly

disobey and also to be absolved of the additions to tax.”

Whether or not petitioner considers his nonfiling an act of civil

disobedience, he must accept the consequences of actions

knowingly taken.   See Kahn v. United States, 753 F.2d 1208, 1215-

1216 (3d Cir. 1985); United States v. Malinowski, 472 F.2d 850,
                               - 11 -

857 (3d Cir. 1973); Reiff v. Commissioner, 77 T.C. 1169, 1177,

1180 (1981).

       Accordingly, we sustain respondent’s determination under

section 6651(a)(1) for the taxable years in issue.

3.     Addition to Tax Under Section 6654(a)

       Respondent further determined an addition to tax under

section 6654(a) for each of the years in issue, asserting that

petitioner failed to pay estimated tax.     Section 6654(a)

provides for an addition to tax “in the case of any underpayment

of estimated tax by an individual”.     Estimated income tax

payments are used to provide for current payment of income taxes

not collected through withholding.      Generally, this addition to

tax is mandatory, and there is no exception for reasonable cause.

See Recklitis v. Commissioner, 91 T.C. 874, 913 (1988);

Grosshandler v. Commissioner, 75 T.C. 1, 20-21 (1980).        However,

no addition to tax is imposed if one of the exceptions contained

in section 6654 is met.    See Recklitis v. Commissioner, supra at

913.

       Petitioner has offered no evidence to show that any of the

statutory exceptions apply.    Accordingly, we sustain respondent’s

determination under section 6654(a) for the taxable years in

issue.

       We have reviewed petitioner’s other arguments and find them

to be irrelevant or without merit.
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         Decision will be entered for

 respondent.
