dissenting: We are confronted again by the anomalous position which the community property law has attained in the field of Federal taxation. See William, Kirkman Gray, 5 T. C. 290; reversed (C. C. A., 5th Cir.), 159 Fed. (2d) 834; George K. Bremen, 4 T. C. 1260; Stella Wheeler Bishop, 4 T. C. 588; reversed (C. C. A., 9th Cir.), 152 Fed. (2d) 389; Estate of James F. Waters, 3 T. C. 407. Long before Poe v. Seaborn, 282 U. S. 101, and in fact before Lucas v. Earl, 281 U. S. 111, Mr. Justice Holmes, in an opinion from which there was only one dissent, pointed out:
But tie question before us is with regard to the power and intent of the Revenue Act * * *. Even if we * * * assume that the wife had an interest in the community income that Congress could tax if so minded, it does not follow that Congress could not taw the husband for the whole. * * * he alone has the disposition of the fund. * * * That he m&y be taxed for suoh a fund seems to us to need no argument. The same and further considerations lead to the conclusion that it was intended to tax him for the whole. For not only should he who has all the power bear the burden, and not only is the husband the most obvious target for the shaft, but the fund taxed, while liable to be taken for his debts, is not liable to be taken for the wife’s * * *. [[United States v. Robbins, 269 U. S. 315, 327-8; emphasis added.]
Although the Supreme Court was there discussing the law of California, the same power exists in the husband in the State of Washington. Warburton v. White, 176 U. S. 484, 494. And the tax-imposing sections were twice reenacted,1 in 1926 and 1928 with this authoritative pronouncement, and no other, in effect..
The further inconsistehcy arises that although in Poe v. Seaborn, supra, the Supreme Court subsequently relieved the husband of taxation on the wife’s theoretical share of Washington community income, it did so in large measure in reliance upon a settled course of administrative construction. We, on the contrary, are here lifting from the husband the tax burden upon income which has uniformly been taxed to him under a consistent and long standing administrative practice. I. T. 1235,1-1C. B. 232, which in turn was soundly grounded in the case law of the State of Washington.2 But in the face of that established construction of the Federal tax law and in reliance upon the supposed authority of a local decision, In re Witte’s Estate, 21 Wash. (2d) 112; 150 Pac. (2d) 595, the operation of our uniform system of Federal taxation is now required to undergo a change.
The Witte case in the first place dealt with the devolution of property upon the husband’s death, a situation as different from this one as was Seeber v. Randall (C. C. A., 9th Cir.), 102 Fed. 215, which we now dismiss as “dicta” on the iDresent issue.3 And, since the largest deficiency is for the year 1943, and the Witte case was not decided until 1944, one can’not but wonder what was the Federal law when Hester v. Stein and not Witte Estate represented the controlling authority in the State of Washington.
Poe v. Seaborn, supra, represents the Federal law on the subject of community income in the State of Washington. But it does not reach this case, and I see no warrant for extending its scope to include income which was earned by the separate real property of the husband and his personal services, which he had the right to use, over which he had complete control, and which for thirty years the Federal law and uniform administrative practice has dealt with as his taxable income. It may be that recent amendments limit the future incidence, of this type of controversy. But for that very reason, and for the sake of the uniformity and integrity of our legal system, this seems to me an appropriate time to reexamine our premises, so as not to deserve repetition of the stricture that the “tax strikes at the jugular without mercy where the common law is concerned, but displays a tender respect for technical formalities where community property is in question.” 1 Paul, Federal Estate and Gift Taxation, p. 61.
Of special interest is Revenue Act of 1926, sec. 1212.
Hester v. Stein, 46 Wash. 469, 90 Pac. 594, which held comparably to Mr. Justice Holmes’ comment in the Rollins case that crops raised by the wife on land separately owned by her could not be taken to satisfy a debt of the husband. It did not appear to be any concern of the Washington court in that case whether or. not the personal services of the wife had contributed to the creation of the crop. See also Seeler v. Randall (C. C. A., 9th Cir.), 102 Fed. 215.
In that case it was held according to the headnote that, under the law of Washington, land which was the separate property of the husband remained so at his death and did not become to any extent community property “because of improvements made with the proceeds of crops raised thereon though produced by the joint labor of both husband and wife.”