Commissioner of Internal Revenue v. Lester/Concurrence Douglas

Mr. Justice DOUGLAS, concurring.

While I join the opinion of the Court, I add a few words. In an early income tax case, Mr. Justice Holmes said 'Men must turn square corners when they deal with the Government.' Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188. The revenue laws have become so complicated and intricate that I think the Government in moving against the citizen should also turn square corners. The Act, 1939 I.R.C. § 22(k), makes taxable to the husband that part of alimony payments 'which the terms of the decree or written instrument fix, in terms of an amount of money or a portion of the payment, as a sum' payable for support of minor children.

I agree with the Court that this agreement did not 'fix' any such amount. To be sure, an amount payable in support of minor children may be inferred from the proviso that one-sixth of the payment shall no longer be due, if the children marry, become emancipated, or die. But Congress in enacting this law realized that some portion of alimony taxable to the wife might be used for support of the children, as the opinion of the Court makes clear.

The present agreement makes no specific designation of the portion that is intended for the support of the children. It is not enough to say that the sum can be computed. Congress drew a clear line when it used the word 'fix.' Resort to litigation, rather than to Congress, for a change in the law is too often the temptation of government which has a longer purse and more endurance than any taxpayer.