                                                                            July 7, 1977


77-41       MEMORANDUM OPINION FOR THE
            CHAIRMAN, CIVIL SERVICE COMMISSION

            Retirement Benefits of Tax Court Judges


   This is in response to your request to the Attorney General of May
 13, 1977, for an opinion concerning the proper construction of 26
 U.S.C. § 7447, which governs retirement benefits for Tax Court judges.
The question posed is whether such a judge is entitled to receive an
annuity under the Civil Service Retirement (CSR) System for covered
services rendered as a Government official before becoming a Tax
Court judge or after leaving the Tax Court where, while a judge, he
elected to receive retired pay under the separate retirement system
provided for Tax Court judges but thereafter failed to qualify to re­
ceive such benefits.
   The task is one of statutory construction. Section 74471 provides for
the payment o f an annuity upon the retirement of a Tax Court judge
under certain conditions. Those conditions concern principally the
judge’s age and length of service, provided the judge has elected to
receive such retired pay during his tenure as a judge. The election,
once made, is irrevocable, and his right to retired pay is forfeited if he
thereafter accepts Federal office or employment.
   The critical language of § 7447 provides that with respect to a judge
who has made the election, “no annunity or other payment shall be
payable . . . under the civil service retirement laws with respect to any
service performed . . . (whether performed before or after such election
is filed and w hether performed as judge or otherwise).” § 7447(g)(2)(A).
You inquire whether an election is effective on the day it was filed or
w hether it only becomes effective at the time the judge becomes enti­
tled to receive retirement benefits under the Tax Court system. It is
argued that if the election is effective on the date of filing, the judge
would be precluded from receiving an annuity under both the Civil
Service Retirement System and the Tax Court system, a result Con­
gress did not intend. The argument refers to a statement appearing in

  1 T h e section is part o f the In ternal R evenue C ode o f 1954, 26 U.S.C. § 1 et seq.

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  the Senate report on the subsequent Tax Reform Act of 1969, which
  stated that “the bill retains the provisions of present law that a Tax
 Court judge may not receive both civil service retirement and Tax
 Court pensions . .      S. Rep. 91-552, 91st Cong., 1st Sess., at 305. The
 post-legislative statements by the Chairman of the Senate Finance Com­
 mittee and the Chairman of the House Committee on Ways and Means
 are to the same effect. The implication apparently is that it was not the
 intention of Congress to preclude the receipt o f an annuity under the
 Civil Service Retirement System if the judge could not receive an
 annuity under the Tax Court system.
    We have considered both sides of the matter carefully, and it is our
 conclusion that a Tax Court judge who has made an election to partic-
 pate in the court’s retirement system, and thereafter fails to serve the
 minimum number of qualifying years, is nevertheless barred from re­
 ceiving an annuity under the Civil Service Retirement System for prior
 or subsequent Federal service. The plain language of § 7447(g)(2)(A) so
 provides, and our examination of § 7447 as a whole indicates that this
 result is consistent with its purpose.
    Section 7447 plainly restricts the freedom of choice of a'T ax Court
judge who has elected the court’s retirement system. He is eligible for
benefits only at age 70, after 15 years of service at age 65, or after 15
years of service when he requests but does not obtain reappointment.2
A retired judge forfeits retirement pay for one year if he does not
return to service when recalled.3'In addition, a retired judge completely
forfeits any benefits under the. system if he accepts any other civil office
under the United States or privately practices law or accountancy
related to the court’s subject matter jurisdiction.4
    In return for accepting these restrictions, a judge who elects the
system receives a financial benefit. If he has served 10 years, he may
receive his full salary.5 Under the Civil Service Retirement System, in
contrast, he could receive no more than 80 percent of his average
salary for his highest consecutive 3 years of service.®
    Thus, the statute provides that to be eligible for the higher retirement
benefits provided by the Tax Court system, the judge must serve until
the end of a full term of office or until he reaches the mandatory
retirement age. To remain eligible, he must return to the court as
requested and must forgo employment that might be inconsistent with
his past or future judicial duties. In particular, he must forgo any
subsequent civilian employment with the United States other than as a
Tax Court judge. It is apparent that one purpose of the statute as a
   1 26 U.S.C. § 7447(b), (d). Judges are appointed for 15-year terms. 26 U.S.C. § 7443(e).
T h e m andatory retirem ent age for Tax C ourt judges is 70, and no' person over 65 may be
appointed.
   3 26 U.S.C. § 7447(0-
   * 26 U.S.C. § 7447(0-
   » 26 U.S.C. § 7447(d)(1).
   •See 5 U.S.C. §§ 8331(4), 8339(a), (e).

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whole is to provide a financial incentive for persons appointed to the
Tax Court to remain in its service instead o f leaving to accept other
positions in the Federal Government. We believe it consistent with this
purpose to regard an irrevocable election to receive benefits under the
Tax Court retirement plan as effective when made. Ineligibility to
receive a civil service retirement annuity for prior or subsequent Feder­
al services reinforces the financial incentive to remain on the court.
   W e do not believe that the statement in the explanation of § 7447 in
the 1969 Senate report is evidence o f a contrary legislative intent. The
basic structure of the section, including the loss of any civil service
annuity by an electing judge, was enacted in 1953.7 The House Ways
and Means Committee report on the section states that an election to
receive retirement pay under the Tax Court plan is “irrevocable,” and
that a judge who has elected the plan “is not to be entitled to any
annuity” under the Civil Service Retirement System.8 The section was
reenacted without change in the Internal Revenue Code of 1954. In
 1969, subsection (g) was amended to allow an electing judge a refund
o f previous contributions to the civil service system, but the basic
structure of § 7447 was unchanged.® There is no indication that Con­
gress considered the problem whether a judge who leaves the Tax
Court before he is eligible under its retirement system loses the right to
future civil service retirement benefits. Because the issue was not raised
in 1969, the statement concerning § 7447 in the Senate report offers no
guidance to the intention o f the Congress that originally enacted it in
1953. See, United States v. Price, 361 U.S. 304, 313 (1960); Rainwater v.
United States, 356 U.S 590, 593 (1958). The legislative history, there­
fore, provides no basis for concluding that § 7447 does not operate
according to its plain meaning.
   N or should weight be given to the postenactment explanations of
congressional intent by the Chairman of the Senate Finance Committee
and the Chairman of the House Committee on Ways and Means. It is
settled that postenactment explanations of legislative intent by subse­
quent statements of individual Members, however deeply involved in
the passage of a statute, are not evidence of the intent of Congress as a
w hole at the time of enactment. See, United States v. Philadelphia
N ational Bank, 374 U.S. 321, 348-49 (1963); United States v. United
M ine Workers, 330 U.S. 258, 282 (1947); Selman v. United States, 498 F.
2d 1354, 1359 n. 6 (Ct. Cl. 1974); Epstein v. Resor, 296 F. Supp. 214,
216 (D. Cal. 1969). See, generally, 2A Sutherland, Statutory Construc­
tion § 48.16.
   Finally, we do not believe it unduly harsh to regard a judge’s elec­
tion of the Tax Court system as being final when made. A judge is free
to elect to participate or to decline to do so. He may defer his decision

  ’ A c t o f A ugust 7, 1953, 67 S tat. 482; Internal R evenue C ode o f 1939, § 1106.
  8 H .R . Rep. 846, 83rd Cong., 1st Sess. (1953) pp. 6, 8.
  0 See T ax R eform A c t of 1969, § 954(c), Pub. L. No. 91-172, 83 Stat. 731; S. Rep. 91-
552, 91st C ong., 1st Sess., at pp. 304-05.

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until the last day o f his tenure without any financial loss. Once he has
elected, he is entitled to a refund of his previous payments to the Civil
Service Retirement System.10 Moreover, the language of § 7447(g)(2) is
not misleading, for it clearly states that after election, no civil service
annuity shall be paid for any Federal service. Under our interpretation
of the statute, a judge may decide whether or not to elect the Tax
Court retirement plan on a rational basis with minimal risk.
                                                     Jo h n M. H arm on
                                                  Assistant Attorney General
                                                          Office o f Legal Counsel




 ‘“ See 5 U.S.C. § 8331(8); 26 U.S.C. § 7447(g)(2)(C).

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