IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 01-60376
(Summary Calendar)
ANNE M. ROGERS, Petitioner - Appellant,
versus
COMMISSIONER OF INTERNAL REVENUE, Respondent - Appellee.
Appeal from the United States Tax Court
(No. 18692-99)
November 21, 2001
Before DAVIS, BENAVIDES, and STEWART, Circuit Judges.
PER CURIAM:*
Appellant Anne M. Rogers (“Rogers”) appeals from the tax court’s decision in favor of
appellee, the Commissioner of Internal Revenue (“CIR”). For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
Rogers failed to file tax returns for the 1996 and 1997 tax years. As a result, the only taxes
she paid for those years were taxes withheld by her employer. On September 21, 1999, the CIR issued
a Notice of Deficiency to Rogers stating that she had understated her tax liability and asserting
penalties. Rogers filed a petition with the tax court contesting the deficiencies and penalties on various
* Pursuant to 5th CIR. R. 47.5, the court has determined that this opinion should not be published and is not
precedent except under the limited circumstances set forth in 5th CIR. R. 47.5.4.
constitutional and statutory grounds. The tax court decided the matter against Rogers and she
subsequently appealed.
STANDARD OF REVIEW
Because Rogers’s appeal addresses questions of law, we review the decision of the tax court
de novo. Woodfield v. Bowman, 193 F.3d 354, 358 (5th Cir. 1999).
DISCUSSION
Rogers first argues that section 1(d) of the Internal Revenue Code (the “Code”), I.R.C. § 1(d)
(West 2001), only applies to government employees. However, this is incorrect. Section 1(d) applies
to all married individuals who do not jointly file with their spouses. Id. Rogers next contends that
even if section 1(d) does cover private employees, as applied to her by the CIR, it violates the equal
protection component of the Fifth Amendment. Bolling v. Sharpe, 347 U.S. 497, 498-99 (1954)
(recognizing that the Fifth Amendment contains the protections afforded by the Equal Protection
Clause of the Fourteenth Amendment). She maintains that because section 1(d) t axes government
employees and private employees equally, while government employees receive benefits to which she
is not entitled, it is unconstitutional. In essence, she asserts that the government must tax its
employees at a higher rate or provide her with the same benefits it gives its employees. This argument
is meritless.
Statutory classifications affecting economic interests must only survive a rational basis test.
Regan v. Taxation With Representation, 461 U.S. 540, 547 (1983). “Legislatures have especially
broad latitude in creating classifications and distinctions in tax statutes.” Id. The government provides
benefits to its employees in exchange for their services. While Rogers is correct that this amounts to
a monetary benefit, it is a benefit earned by the individual. The government is not required to provide
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benefits for individuals not employed by it, and the government is certainly not required to tax its
employees at a higher rate because it provides benefits to its empl oyees. It is true that Congress
exempts such benefits from taxation; however, the same exemption is made available to private
employees. E.g., I.R.C. § 106(a) (West 2001) (“[G]ross income of an employee does not include
employer-provided coverage under an accident or health plan.”). Nevertheless, Rogers asserts that
she is being treated differently than federal employees because she is not able to obtain similar benefits
from her employer. Again, the obvious and rational basis for the government’s provision of benefits
to its employees, and not other individuals, is the need to compensate individuals working for the
government.
Rogers next contends that the Code deprives her of equal protection by subjecting her to the
same rate of taxation as artificial entities, such as a trust or an estate. This argument is also without
merit, as she pays a lower rat e of tax than these entities. Compare I.R.C. § 1(d) with § 1(e).
Moreover, contrary to Rogers’s protestations, just because Congress may make certain distinctions
among taxable entities and individuals, does not mean that the contrapositive is true-- that Congress
is required to make such distinctions. Regan, 461 U.S. at 547.
Rogers also argues that the Code violates the Takings Clause of the Fifth Amendment. She
asserts that the she is being deprived of her property through taxation. However, Congress’s exercise
of its taxing power does not constitute a taking under the Fifth Amendment. E.g., Coleman v.
Comm’r of Internal Revenue, 791 F.2d 68, 70 (7th Cir. 1986) (“[T]he general tax levied by the
Internal Revenue Code does not offend the Fifth Amendment.”).
Rogers further contends that her due pro cess rights have been violated because her
fundamental right to contract with her employer has been infringed upon. The burden is on Rogers
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to prove a due process violation by showing that Congress has acted in an arbitrary and irrational way.
Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15 (1976). We are strained to understand how her
right to contract with her employer is violated by the imposition of taxes. Moreover, she certainly has
not shown that Congress acted in an arbitrary and capricious manner when it determined that Rogers
should be subject to the same rate of taxation as other married individuals filing separate returns.
Finally, Rogers asserts that the tax court erred by not reducing the amount of the deficiency
to reflect payments made through withheld taxes. Because Rogers did not raise this contention at the
trial level, it has been waived.1
CONCLUSION
Accordingly, we AFFIRM the tax court’s decision that Rogers is liable for the taxes and
penalties assessed by the CIR.
1
Moreover, we note that even if she did not waive this argument, it too is without merit. The CIR determines the
amount of a deficiency by assessing the total amount due and subtracting the amount shown on an individual’s return.
I.R.C. § 6211(a) (West 2001). Because Rogers did not file a return, the deficiency reflected the total yearly amount
due. This does not mean that Rogers will be required to pay the entire amount. Upon assessment, she will be credited
in the amount of her withheld taxes in accordance with the Code. I.R.C. §§ 31, 6201 (West 2001).
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