This case is before us on petitioner's motion for reconsideration of our opinion in Lane-Burslem v. Commissioner, 70 T.C. 613, filed August 3, 1978. The issue before us there was whether one-half of petitioner's salary earned while she was employed in England by the United States Department of Defense should be treated as her spouse's income under Louisiana community property laws, and, therefore, exempt from United States income taxation because her spouse was a nonresident alien and the income was from foreign sources.
In our original opinion, we held that it would be necessary for both the husband and wife to have their domiciles in Louisiana in order to create a marital community in which both spouses would share in the earnings of the Louisiana domiciliary.
The issue presented to us by petitioner on this motion is whether the laws of Louisiana, which deny petitioner a domicile in Louisiana and the benefits of that State's community property law, are constitutional under the Equal Protection Clause of the 14th Amendment and the Due Process Clause of the 5th Amendment.
Petitioner argues that we need not determine whether her husband has a property right in her income in the event we hold Louisiana Civil Code Annotated article 39 unconstitutional.
While we agree with petitioner that she need not show that she would ultimately prevail in her lawsuit in this Court in order to have standing to challenge the constitutionality of the Louisiana statute (Orr v. Orr, 440 U.S. 268 (1979)), we do not believe she is necessarily entitled to the relief she seeks upon a showing that the statute is unconstitutional.
In this regard, petitioner contends that the constitutional infirmity (if there is one) would be resolved by Louisiana granting to either spouse the ability to take his or her own domicile and that the nonresident and nondomiciliary spouse would have a community property interest in the Louisiana domiciliary spouse's property. If this were the case, petitioner would prevail, assuming she maintained a separate, Louisiana domicile.
We disagree. The rationale underlying Louisiana Civil Code Annotated article 39, that the domicile of the wife is that of her husband, is that under Louisiana law a wife is bound to live with her husband.
If we reject as unconstitutional the rule that the wife's domicile is that of her husband by operation of law, it would seem to follow that she should not automatically obtain the benefit of owning a half-interest in her husband's earnings since the rationale for providing her with that benefit no longer exists. It is clear that the husband, who does not take his wife's domicile, does not receive the benefits of his wife's domicile. We believe on this basis that if Louisiana Civil Code Annotated article 39 is unconstitutional as it relates to determining property rights, the Louisiana courts would deny a wife, residing in a common law property State apart from her husband (and retaining her own domicile) a one-half interest in her husband's property. Under this system, then, the rights of the husband and wife would be parallel, that is, neither a husband nor a wife has a community property interest in the property of the other spouse where the spouse has a domicile apart from his or her husband or wife.
In short, we do not believe that under any interpretation of Louisiana law, whether article 39 is constitutional or unconstitutional, petitioner's husband would have a property interest in petitioner's income. This is so because we have determined that, absent Louisiana Civil Code Annotated article 39, petitioner's marital domicile would be England, the domicile of her husband (on a factual, rather than legal basis); or alternatively, if petitioner retained a separate, Louisiana domicile, her husband would retain his domicile in England with no legal basis for a community interest in her income. For this reason, we do not need to decide the constitutional question. We again hold for respondent on this issue.
Decision will be entered under Rule 155.
We expressed some doubt, however, in our original opinion at n. 3 that Louisiana would permit a wife living amicably with her husband to maintain a separate domicile. See Welsh v. Welsh, 322 So.2d 352 (La. App. 1975); Du Verney v. Ledbetter, 61 So.2d 573 (La. App. 1952).
We also noted at n. 3 that there were no special circumstances (as that term has been applied by the Restatement of Conflict of Laws and the courts) that make it unreasonable for petitioner to take her husband's domicile by operation of law. See Martin v. Hefley, 533 S.W.2d 521 (Ark. 1976); Simpson v. Simpson, 339 So.2d 250 (Fla. Dist. Ct. App. 1976); Bowers v. Bowers, 287 So.2d 722 (Fla. Dist. Ct. App. 1973); Ashmore v. Ashmore, 251 So.2d 15 (Fla. Dist. Ct. App. 1971); Glassman v. Glassman, 75 Ohio App. 47, 60 N.E.2d 716 (1944); Berlingieri v. Berlingieri, 373 Ill. 60, 22 N.E. 675 (1939); Spielman v. Spielman, 144 Wn. 421, 258 P. 37 (1927). See also Commonwealth of Virginia v. Rutherfoord, 160 Va. 524, 169 S.E. 909 (1933).
Petitioner's argument, as we understand it, is that she has met the test for retaining her Louisiana domicile absent her marriage to Eric and that upon finding art. 39 unconstitutional, we must use the test which applied in the absence of her marriage. In n. 2 of our original opinion, we stated that petitioner showed that she had a fixed intent to return to Louisiana (her domicile of origin) and that under District of Columbia v. Murphy, 314 U.S. 441 (1941), this fixed intent would have been sufficient for her to retain her Louisiana domicile (absent her marriage).
"None of these classes includes what we now have before us — husband and wife domiciled in different places (Kansas and Spain), residing in one place (Spain), which is also the jurisdiction where the money was earned. In that situation it may be that the law of the earner's own domicile (Kansas) determines ownership (see Restatement (Second) of Conflicts + BB 258, comment c) but it also may be that Spain has the more significant relationship to the spouses and to the earnings — and therefore that its internal law should prevail on ownership. See Restatement (Second) of Conflicts, + BB 258(1). We need not try to solve that problem in vacuo because it is likewise a recognized precept that in any event the situs state — the place where the income was earned or the movable was acquired — can determine the marital interests by its own law if it affirmatively seeks to do so. See R. Leflar, American Conflicts Law (1968) + BB 235 at 565; H. Goodrich, Handbook of the Conflict of Laws + BB 124 at 252 (4th ed. Sooles editor, 1964)."
See also Zaffaroni v. Commissioner, 65 T.C. 982, 988 (1976).
See G. Bilbe, "Constitutionality of Sex-Based Differentiations in the Louisiana Community Property Regime," 19 Loy. L. Rev. 373 (1971).