(dissenting).
The Messners contend, as indicated by the majority opinion, that they are entitled to file a joint federal income tax return for the year 1970 and that Mr. Messner can claim all of the net income for the purpose of securing the ultimate in benefits from the Social Security program; and yet that they may file separate state income tax returns for the avowed purpose of paying less state income tax than would be owing had they filed a joint state income tax return. The tax commissioner has vigorously disputed the' Messners’ right to file separately. The question is now before this court for decision.
The parties to this action have cited §§ 57-38-01.1 and 57-38-31(2), N.D.C.C., and Rule 50(4)b, which was promulgated by the State Tax Commissioner.
Pursuant to § 57-38-01.1, N.D.C.C., the North Dakota Legislature has adopted the federal definition of taxable income as the starting point for the computation of state income tax by all taxpayers. This, in essence, results in using the taxable income from Federal Form 1040 as the basis for the North Dakota income tax return. This is true whether a person files a joint return with his spouse or a separate return. Both parties to this action are in agreement on this.
Section 57-38-31(2), N.D.C.C., states that if a person files a joint federal return but wishes to file a separate state return, the taxpayer simply cannot use the taxable income figure which was derived from the federal income tax return by simply dividing such income. He must recalculate his federal taxable income in order to obtain the starting point for the state return. This requires an allocation of income between the spouses based upon certain criteria. Section 57-38-31(2), N.D.C.C., points out the necessary criteria for this determination. It does not set out separate standards for computing taxable income, nor does it relieve the taxpayer from recalculating his federal taxable income.
In the instant case, a careful review of the record fails to show that Mrs. Messner recalculated her taxable income — she merely took one-half of the taxable income from the joint federal return. It must be kept in mind that the evidence which is germane is that evidence covering the year 1970, the income tax year which is in question, and not what may have occurred in other years. The participation and activity of the taxpayer in the year 1970 is the focal point and the crux of this action. The record is very limited on participation by the taxpayers, particularly of Mrs. Messner, in the year 1970. The primary source of income was from the sale of grain — there was apparently no income from livestock or poultry. The fact that Mrs. Messner may have owned the real estate in joint tenancy with her husband may be one criterion, but it is *322not decisive. Mere ownership or joint ownership of farm property in itself does not qualify a spouse for self-employment tax purposes (Farmer’s Tax Guide — 1971 Edition); nor is joint tenancy ownership in itself sufficient to justify the splitting of income.
Both parties concede that the tax commissioner, pursuant to § 57-38-56, N.D. C.C., has the power to promulgate rules and regulations necessary to collect taxes which individuals owe to the State, whether they be income, sales, or use taxes. Rule 50(4)b creates a presumption that, unless expressly shown to the contrary, the spouse claiming all of the income from a joint federal return for self-employment tax purposes, claims that same income for state income tax purposes. The majority opinion further states that the self-serving, unsworn, and unverified declaration of the Messners shows that Mrs. Messner did not consent to her husband’s claim of all the joint income for tax purposes. The fact that Mrs. Messner signed the joint federal income tax return belies this contention. By failing to file a self-employment tax return as required by 26 U.S.C. § 6017, she has consented to her husband’s claim on all the income. In Woller v. Wisconsin Department of Taxation, 35 Wis.2d 227, 151 N.W.2d 170 (1967), the Wisconsin Supreme Court stated that the burden of showing an error in a tax assessment is on the taxpayer. The Messners concede that the burden is upon them. We adhere to this rule. See generally Evangelical Luth. G. Sam. Soc. v. Board of Cty. Com’rs, 219 N.W.2d 900 (N.D.1974); Y.M.C.A. of N.D. State Univ. v. Board of County Com’rs, 198 N.W.2d 241 (N.D.1972). The promulgation of such rules by the tax commissioner, of course, is limited by constitutional restrictions. The application of constitutional prohibitions concerning the collection of taxes has been and still is considered in a distinct category — State ex rel. Haggart v. Nichols, 66 N.D. 355, 265 N.W. 859 (1936), Syll. ¶¶ 5, 6, 7, 8, & 9 — as opposed to protection of the constitutional rights of a defendant charged with a crime. Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351, reh. den. 411 U.S. 910, 93 S.Ct. 1523, 36 L.Ed.2d 200 (1973).
In the instant case the majority opined that Rule 50(4)b is not unconstitutional per se but is unconstitutional in its application to this case. This court, in Tang v. Ping, 209 N.W.2d 624 (N.D.1973), in paragraph 1 of the syllabus, held:
“A statute that defines adulthood with different ages for males and females, when applied to the Unsatisfied Judgment Fund law, produces an unconstitutional result in that equal protection of the law is denied to males aged eighteen through twenty. . . . ”
The factual situation in the Tang case distinguishes it from the case at bar. Likewise, in Boeing Company v. Omdahl, 169 N.W.2d 696 (N.D.1969), and in Souris River Telephone Mutual Aid Corp. v. State, 162 N.W.2d 685 (N.D.1968), this court upheld the authority of the tax commissioner with reference to various taxes imposed by the tax commissioner. We accordingly disagree with the majority that there was substantial evidence submitted by the Messners to show that there was in effect an error in the assessment. Again, there is no substantial evidence in the record to show Mrs. Messner⅛ contributions for the 1970 tax year. This court has often held that the decision of administrative agencies will be upheld, provided there is substantial evidence in support of the actions of the various administrative agencies. Soo Line Railroad Company v. City of Wilton, 172 N.W.2d 74 (N.D.1969); Application of Northern States Power Co., 171 N.W.2d 751 (N.D.1969); George E. Haggart, Inc. v. North Dakota Workmen’s Compensation Bureau, 171 N.W.2d 104 (N.D.1969); and Williams Electric Cooperative, Inc. v. Montana-Dakota Utilities Co., 79 N.W.2d 508 (N.D.1956).
The majority opinion has adopted the view that the self-employment tax is not an integral part of the income tax and, there*323fore, the filing of a self-employment tax return by Mr. Messner does not bar or estop Mr. and Mrs. Messner from splitting their income and that the tax commissioner was unjustified in treating the Messners’ election as conclusive for state income tax purposes. A perusal of §§ 1401 and 1402 of 26 U.S.C. leads me to a diametrically opposing conclusion, especially in light of the decision of the Fifth Circuit Court of Appeals in Cain v. United States, 211 F.2d 375, 377, cert. den. 347 U.S. 1013, 74 S.Ct. 868, 98 L.Ed. 1136 (1954), in which the Circuit Court stated:
“What in short is in question here is not the power of congress to lay impost and excises. It is whether congress has the power to impose and collect from employees, self or otherwise employed, taxes on the income received from their employment in addition to other income taxes imposed upon them. We see no difficulty in the way of its so doing. Congress can constitutionally, in imposing income taxes, distinguish between earned and unearned income and between income from various kinds of property and occupations, and has often done so. The imposition and collection of an additional income tax on the income of persons not self employed has been going on without contest or question for many years. We think it clear that persons receiving income from self employment can be subjected to additional income taxes on the moneys so received in the same way and to the same extent that persons not self employed can be and are being so subjected.”
The Court, in Cain, 211 F.2d at 378 supra, again stated:
“Neither can we find any [warrant] for the view that it [Congress] cannot do what it has done and is doing here, legally impose and legally collect an additional income tax on income derived from self employment, just as it can do, and has long been doing, legally impose and as legally collect an additional income tax from persons otherwise employed.”
I believe our court should adhere to this holding.
I also disagree with paragraph 3 of the syllabus in the majority opinion, based on the reasons set forth, supra, in this dissent, because the Messners, by filing a joint federal income tax return and then filing separate state income tax returns brought themselves within the purview of Rule 50(4)b by their own choice. The majority opinion further does not point out what, if any, individual rights have been abridged by Rule 50(4)b, or that it results in an invidious discrimination to a particular class of persons. I again cite Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 93 S.Ct. 1001, 35 L.Ed.2d 351, supra, for its discussion of constitutional prohibitions. As previously mentioned, this court has held that a statute is not unconstitutional on the ground that it discriminates against a certain class of people as long as the persons within that class are treated equally. State v. Gamble Skogmo, Inc., 144 N.W.2d 749 (N.D.1966); Souris River Telephone Mutual Aid Corp. v. State, 162 N.W.2d 685 (N.D.1968); and State ex rel. Haggart v. Nichols, 66 N.D. 355, 265 N.W. 859 (1936). Therefore, adopting the rationale of the above cases, Rule 50(4)b is not unconstitutionally applied by the tax commissioner as evidenced by the facts in the instant case. Furthermore, the Supreme Court of Wisconsin, in Skaar v. Wisconsin Department of Revenue, 61 Wis.2d 93, 211 N.W.2d 642, 645 (1973), quoted with approval from Commissioner of Internal Revenue v. Tower (1946), 327 U.S. 280, 291, 66 S.Ct. 532, 90 L.Ed. 670, in which the United States Supreme Court stated that:
“ ‘. . transactions between husband and wife calculated to reduce family taxes should always be subjected to special scrutiny.’ ”
While 1 believe that a taxpayer is allowed to avoid paying excess taxes, he should not be allowed to evade taxes that he rightfully owes. In the instant case, the Messners *324chose to file a joint federal income tax return to maintain maximum social security benefits for Mr. Messner, and to avoid paying self-employment tax on their entire income. They then chose to split their income on the state income tax return to avoid paying additional state income tax. We do not believe that a husband and wife can shift income back and forth between them in order to reduce taxes on the various components of their income. The federal income tax law does not allow this activity, and, pursuant to § 57-38-31(2), N.D.C.C., neither does the North Dakota tax law.