dissenting:
In my view, the majority opinion is not so much wrong as it is beside the point. This case does not involve difficult questions of express or implied repeal. On the contrary, we are asked simply whether an act of Congress applicable to the estates of decedents dying after December 31,1981, applies to the estate of a decedent dying after December 31, 1981. The answer is manifest, so I am constrained to dissent.
I.
As the majority notes, before 1976, all joint interests in property were treated the same for estate tax purposes. The decedent’s estate included the full market value of the property, except to the extent that the survivor could show that he or she contributed money toward the property’s purchase or improvement. The survivor’s basis in the property was — and still is — the amount included in the decedent’s estate.
The pre-1976 rule was a great injustice to housewives. Their husbands generally had been the bread (and thus the property) winners. If the husband died first, the wife was stuck with an estate tax bill (at the time, the marital deduction was only 50% of the estate passing to the survivor). On the other hand, if the wife died first, the husband could take the property free of charge.
Congress began a series of clumsy reforms in 1976. It added 20 U.S.C. § 2040(b),1 which provided that, for a “qualified joint interest” of a husband and wife, the decedent’s gross estate included only one-half of the value of the property, notwithstanding which spouse contributed the funds for its purchase. This was a great idea, except that Congress fouled it up right away by defining “qualified joint interests” as those (i) created by the decedent, the survivor, or both (ii) after December 31, 1976. Thus, the reform applied to nothing when enacted, and preexisting joint interests could be made “qualified joint interests” only if the couple took formal steps to record a new deed, etc. Naturally, many of the persons the new statute was designed to benefit failed to take those steps.
Congress tried to fix § 2040 in 1978, but succeeded only in making things worse. Section 2040c was added to permit a reduction in the decedent’s gross estate where the surviv- or, though not contributing capital, had participated in a farm or business. Section 2040(d) took the logical step of eliminating the need for a re-creation of the pre-1976 joint interest, but only if the couple filed a gift tax return — and paid any applicable tax — reporting the parties’ contributions to the property’s purchase and appreciation. Naturally, couples were just as unlikely to pay taxes on their own initiative as to draw up a new deed. Finally, new § 2040(e) delivered the regime of complexity’s coup de grace: even if a couple re-created their pre-1976 joint interest by deed, there would be no “qualified joint interest” unless they also filed the gift tax return under § 2040(d).
II.
In 1981, Congress undertook a grand revision of the tax code. It finally did the right thing with § 2040:
(i) the 1978 amendments (subsections (c), (d), and (e)) were repealed, and
*1039(ii) subsection (b) was revised to make any property held by the decedent as a spousal joint tenant a “qualified joint interest,”
(in) with the new (b) “applicable to estates of decedents dying after December 31, 1981.”
Simultaneously with this amendment, the marital deduction for the surviving spouse was increased to 100%. This change allowed the tax burden of spousal joint property to be deferred until either both died or the surviv- or sold the property and realized a gain.
III.
When David Blaney died, the 1981 amendment was, by its own terms, applicable to his estate, so only half of the value of the property was included. When Marjory Blaney sold the property the next year, she used as her basis the amount included in her husband’s estate, which was also in compliance with clear law. See 26 U.S.C. § 1014(b)(9). Her administratrix has now convinced the majority that this adherence to the letter of the law was wrong.
The administratrix’s argument is that Congress created the concept of “qualified joint interest” in 1976 and made it effective only prospectively. The 1981 amendment did not “repeal” this conceptual portion of the 1976 law, and, therefore, § 2040(b) really applies only to “estates of decedents dying after December 31, 1981” where any pre-1976 joint interest would have been a “qualified joint interest” under prior law.
Of course, the statute says no such thing, and, inasmuch as the statute is clear on its face, we have no license to construe it to include this far-reaching proviso. It just does not matter what sort of concept Congress created in 1976, because, in 1981, it created an entirely different one. Since December 31,1981, “qualified joint interest” has been defined solely by the date of the first spouse’s death. There was no reason or need for Congress to repeal the effective date of a repealed definition. Everyone who died on or before December 31, 1981, has died; all who were destined to survive survived. It takes no act of Congress to ratify the effect of the sands of time.
In sum, “qualified joint interest” was once defined by the time and manner of the creation of the interest; now it is defined by the date of death. David Blaney’s death fit the definition.2
I would reverse.
. The old rule survives for non-spousal joint interests and is codified at 20 U.S.C. § 2040(a).
. It bears noting that the administratrix’s argument provides for a windfall that Congress surely did not intend. The 100% marital deduction was enacted simultaneously with the new § 2040(b). By providing that the survivor’s basis was only half of the property’s value, Congress ensured that the survivor or her estate would ultimately pay some tax. To include 100% of the value in the decedent's estate (under the old rules) and permit the survivor a 100% deduction (under the new rules) is illogical and supports my view that the statute was intended to mean what it clearly says — it applies to estates of decedents dying after December 31, 1981. It applies here.