dissenting:
The majority passes over the existence of a significant ambiguity regarding an issue of California state law that has not been addressed by the state’s highest court. The question is whether a portion of a divorced employee’s wages should be treated as community property when it is used solely for the payment of an ex-spouse’s court ordered pension benefits that are community property; in such cases, the former spouse would have received the amount in question as pension benefits (i.e. community property) if her ex-husband had retired at the time he became eligible to do so. Alternatively, the amount of wages that is paid over to the ex-wife as pension benefits could be considered to be exclusively the husband’s wages and he would have to pay full taxes on that income even though he neither uses nor benefits from it. The majority chooses the latter option. I respectfully dissent. I would certify the question of how to treat the money involved under California law to the California Supreme Court.
The majority opinion imposes negative tax consequences on a police officer who chooses to work past retirement eligibility age and thus to defer collection of his pension. It requires him to pay full income taxes on the part of his salary that he pays over to his former wife as her community interest in his pension benefits — a result that defies reason, not to mention fairness. If the payment were considered to be what it actually is, a distribution of the ex-wife’s interest in the pension benefits, the husband would not have to pay any taxes on the amount in question. If the question were certified, I think there is a reasonable chance that the California Supreme Court would not decide it the way the majority does. All the California court need do in order to achieve an equitable result is to declare as a matter of state law what is the fact — that in circumstances such as those in which Officer Dunkin finds himself, the part of his salary that he receives and then pays to his ex-wife as reimbursement of the share of pension benefits to which she is entitled under the California court order constitutes the receipt and payment of her interest in community benefits.
I.
In 2000, John Dunkin paid his ex-wife $25,511, her share of the annual pension benefits he would have received if he had not decided to continue serving the Los Angeles Police Department beyond his retirement age. He did so because his former wife elected immediate payment of her share of those benefits (a “Gillmore election”). No California Supreme Court case addresses the question whether the portion of his salary that an employee devotes exclusively to compensating his former spouse for her share of his pension benefits that she would directly receive as community property were he retired should itself be treated as community *1073property. An analysis of several California court of appeal decisions discussing Gillmore elections reveals the considerable ambiguity surrounding the question.
As support for its position, the majority points to the California Supreme Court’s statement that when an employee facing a Gillmore election continues working “he may use separate property to reimburse” the non-employee spouse. Gillmore, 174 Cal.Rptr. 493, 629 P.2d at 6. This statement itself does not decide the issue, and another statement in the same opinion creates uncertainty. The Gillmore court acknowledged in a footnote the argument that the portion of an employee’s salary that he uses to compensate his former spouse for her share of the pension benefits should be considered community property and not part of his separate income. 174 Cal.Rptr. 493, 629 P.2d at 6 n. 7 (citing Note, In re Marriage of Stenquist: Tracing the Community Interest in Pension Rights Altered by Spousal Election, 67 Cal. L.Rev. 856, 879 (1979)). The majority is correct in saying that the Gillmore court did not adopt this analysis, but the court did not reject it either. Rather, the court stated that it was not necessary to reach the question and left open the possibility that such a rule could be established in the future.
Subsequent cases in the California court of appeal create additional uncertainty. In In re Marriage of Shattuck, the court found that the Gillmore court did not create the rule that the employee “be deemed to have received his monthly pension payments, and was therefore bound to pay over[his spouse’s] community property share of them.” 134 Cal.App.3d 683, 184 Cal.Rptr. 698, 700 (1982). More than ten years later, another California court asserted that such a rule had been adopted in other cases when calculating payments owed to former spouses. Nice v. Nice, 230 Cal.App.3d 444, 450 n. 2, 281 Cal.Rptr. 415 (1991) (citing Marriage of Scott, 156 Cal.App.3d, 251, 253, 202 Cal.Rptr. 716 (1984) (holding that the non-employee spouse is entitled to the benefits that she would have received “had [her former husband] actually retired on the date she elected to receive her interest”); In re Marriage of Jacobson, 161 Cal.App.3d 465, 475, 207 Cal.Rptr. 512 (1984) (holding that a present election payment was properly calculated as though the employee spouse retired at the time of trial and the nonem-ployee spouse must forego future appreciation in the pension’s value); In re Marriage of Castle, 180 Cal.App.3d 206, 210-11, 216-17, 225 Cal.Rptr. 382 (1986) (holding that when a non-employee spouse elects a present benefit, her payment is to be calculated as though the employee spouse retired at the time of trial)). If courts create the rule that the pension is distributed as community property when calculating payments, there is no reason to think that they would not use the same principle to determine that the portion that is to be used to satisfy the pension interest is distributed as community property as well.
Because of the uncertainty in the law, and because federal courts traditionally defer to the states on questions of family law, see In re Marriage of Castle, 180 Cal.App.3d 206, 210-11, 213, 225 Cal.Rptr. 382 (1986), it is appropriate to certify this question to the California Supreme Court.
II.
The majority’s approach places the employee former spouse in an unfortunate position. If he elects to retire instead of continuing to serve the Los Angeles police department, he will not have to pay taxes on income he does not receive. See Scott, 156 Cal.App.3d at 253, 202 Cal.Rptr. 716. If he elects to continue to work, however, he will. At a time when the federal gov-*1074eminent is encouraging postponing retirement due to a looming Social Security shortfall, and police forces nationwide are facing officer shortages as officers retire at a younger and younger age and take (or divide) their pension benefits and go off to obtain higher paying jobs in private industry, the majority adopts a rule that discourages divorced officers (and there are many) from continuing to serve the Los Angeles and other police departments. I would hope that the California Supreme Court would not create such perverse incentives if it were to decide the question.
Because this case presents a question of first impression that falls squarely in the realm of state law in a subject area in which federal courts defer to state court decisions, I believe that we should certify the question to the California Supreme Court. Certainly, it could not arrive at a less fair and reasonable decision. Therefore I respectfully dissent.