1. A judgment of the district court in an action against the
United States under the Tucker Act, Jud.Code, § 24, Par. 20, was
reviewable directly by this Court. P. 269 U. S.
2. The whole income from community property in California was
returnable by and taxable to the husband under the Revenue Act of
Feb. 24, 1919. Id.
in view of the power of the husband over
community property, its liability for his debts, etc., under the
law of that state, without deciding whether the wife's interest is
"a mere expectancy" or something more.
5 F.2d 690
Error to a judgment of the district court in favor of the
executors of Robbins, in an action against the United States to
recover money paid by the decedent as income tax.
Page 269 U. S. 325
MR. JUSTICE HOLMES delivered the opinion of the Court.
This is a suit to recover $6,788.03 income tax for the year
1918, paid by R. D. Robbins, late of California. Mr.
Page 269 U. S. 326
Robbins was married, and the income taxed came from community
property in California, acquired before 1917, when some changes
were made in the law, and from the earnings of R. Robbins. He was
required by the Treasury Department to return and pay the tax upon
the whole income, against the effort of Mr. and Mrs. Robbins to
file returns each of one-half. The result was that he had to pay
the amount sued for, above what would have had to be paid if his
contention had been allowed. The district court found the facts as
agreed by the parties, and upon them ruled that the plaintiffs, the
executors of Robbins, were entitled to recover as matter of law.
Robbins v. United States, 5 F.2d 690
A writ of error was taken by the United States before the Act of
February 13, 1925, c. 229, 43 Stat. 936, went into effect.
Greenport Basin & Construction Co. v. United States,
260 U. S. 512
260 U. S.
Elaborate argument was devoted to the question whether the
interest of a wife in community property has the relatively
substantial character in California that it has in some other
states. That she has vested rights has been determined by this
Court with reference to some jurisdictions, Warburton v.
White, 176 U. S. 484
Arnett v. Reade, 220 U. S. 311
the Treasury Department has carried those rights to the point of
allowing a division in the return of community income in other
states where the community system prevails. Regulations 65,
relating to the Income Tax under the Revenue Act of 1924, Art. 31.
Its adoption of a different rule for California was based, we
presume, upon the notion that, in that state, a wife had a mere
expectancy while the husband was alive.
If, on the whole, this notion seems to us to be adopted by the
California courts, it is our duty to follow it, so far as material,
even if contrary expressions should be found here or there in the
books, and it is no concern of ours whether the prevailing decision
is a legitimate descendant from its parent the Spanish law or
otherwise. We can see no sufficient reason to doubt that the
settled opinion of
Page 269 U. S. 327
the Supreme Court of California, at least with reference to the
time before the later statutes, is that the wife had a mere
expectancy while living with her husband. The latest decision that
we have seen dealing directly with the matter explicitly takes that
view, says that it is a rule of property that has been settled for
more than 60 years, and shows that Arnett v. Reade,
220 U. S. 311
would not be followed in that state. Roberts v. Wehmeyer,
191 Cal. 601, 611, 614. In so doing, it accords with the
intimations of earlier cases, and does no more then embody the
commonly prevailing understanding with regard to California law as
shown by commentators and the action of the Treasury Department, as
well as by the declarations of the Court. McKay, Community
Property, § xi, p. 44. 35 Harvard Law Review, 47, 48. Treasury
Regulations 65 Relating to the Income Tax under the Revenue Act of
1924, Art. 31. Rice v. McCarthy
(Cal.Ct.App.), 239 P.
But the question before us is with regard to the power and
intent of the Revenue Act of February 24, 1919, c. 18, Title II,
Part II §§ 210, 211, 40 Stat. 1057, 1062. Even if we are wrong as
to the law of California, and assume that the wife had an interest
in the community income that Congress could tax if so minded, it
does not follow that Congress could not tax the husband for the
whole. Although restricted in the matter of gifts, etc., he alone
has the disposition of the fund. He may spend it substantially as
he chooses, and if he wastes it in debauchery, the wife has no
redress. See Garrozi v. Dastas, 204 U. S.
. His liability for his wife's support comes from a
different source, and exists whether there is community property or
not. That he may be taxed for such a fund seems to us to need no
argument. The same and further considerations lead to the
conclusion that it was intended to tax him for the whole. For not
only should he who has all the power bear the burden, and not only
Page 269 U. S. 328
husband the most obvious target for the shaft, but the fund
taxed, while liable to be taken for his debts, is not liable to be
taken for the wife's, Civil Code, § 167, so that the remedy for her
failure to pay might be hard to find. The reasons for holding him
are at least as strong as those for holding trustees in the cases
where they are liable under the law. Section 219. See
Regulations 65, Art. 341.
MR. JUSTICE SUTHERLAND dissents.
MR. JUSTICE STONE took no part in the case.