United States of America, Appellant, v. W. J. Shirah and Cleopatra Shirah, Appellees, 253 F.2d 798 (4th Cir. 1958)

A member of the police force of Columbia, South Carolina, and his wife with whom he had filed a joint return, brought suit against the United States for a refund of $540 collected for a deficiency assessed against them by the Commissioner of Internal Revenue. This appeal is from the judgment awarded by the District Court in favor of the plaintiffs.

In their joint income tax return for the year 1955, the taxpayers availed themselves of the provisions of the Act of Congress¹  and the ordinance of the City of Columbia²  adopted pursuant thereto, and excluded from income the sum of $5 per day received by the policeman as a "statutory subsistence allowance." The alleged deficiency resulted from the Commissioner's disallowance of the claimed exclusion.

The Government concedes that it could not object to the exclusion from income of the $5 per day received as a statutory subsistence allowance even if the taxpayer's actual expenditure for this purpose was less than this amount. It is asserted, however, that in this instance the policeman's duties were performed in the City of Columbia and that he was not required to spend any part of the allowance for subsistence, and that in practice the City of Columbia provides for reimbursement of policemen for expenses incurred while on official business. Thus, it is argued, the payment was in fact salary.

Whether this policeman actually incurred subsistence expense while on duty is not the decisive question. The exclusion from income of the amount authorized by statute and fixed by ordinance was not made to turn on this point. It was provided for all policemen within its terms because of the nature of the work of policemen generally. The Congress may well have thought it undesirable to draw distinctions between those who spend more than five dollars per day, those who spend less than that sum, and those who may sometimes spend more and sometimes less. It may have considered sifting of the particular circumstances of each case open to objections that would outweigh the possible savings of revenue. If such was the Congressional design, the language employed is apt for its achievement. The statute merely requires the adoption of complementary legislation by a state or its subdivision and the receipt by the policeman of a sum not exceeding $5 per day as a "statutory subsistence allowance."

It is objected that the ordinance designated a portion of the salary as subsistence in order to effect a tax saving. The answer is that this is precisely what the Act invited the states and municipalities to do. By necessary implication the federal act leaves it to the local government to define the "statutory subsistence allowance."

The Government points out that for the purpose of disability and retirement benefits South Carolina includes in the basis of computation the full payment to the policeman undiminished by the subsistence allowance. This, however, is merely a matter of state policy in its retirement system and need not be fashioned to conform to the legislative plan of tax relief adopted pursuant to Congressional authority.

It is also urged that in enacting the law Congress had in mind state troopers and not local policemen; but the statute is more broadly drawn.

It cannot be said that giving effect to the plain meaning of the language would bring a result that is irrational or absurd, however much we may disagree with its necessity or wisdom. We have no right to fetter a broad provision with conditions not expressed and not essential to the execution of the law, for courts are not free to rewrite legislative enactments to give effect to the judges' ideas of policy and fitness or the desirabilty of symmetry in statutes. Crooks v. Harrelson, 1930, 282 U.S. 55, 59 et seq., 51 S. Ct. 49, 75 L. Ed. 156; Osaka Shosen Kaisha Line v. United States, 1937, 300 U.S. 98, 57 S. Ct. 356, 81 L. Ed. 532.

If it be deemed preferable, in granting the exclusion, not to deal uniformly with policemen as a class, but to conduct an inquiry in the individual case to determine whether a policeman claiming the benefit in fact incurred expense, the correction is one for the Congress to make.³  It is not the court's province to do so, nor can the Treasury make regulations contrary to the unambiguous language of the law. See: Income Tax Regulations — 1954 Code, Sec. 1.120-1. Trust of Bingham v. Commissioner, 1945, 325 U.S. 365, 377, 65 S. Ct. 1232, 89 L. Ed. 1670; Social Security Board v. Nierotko, 1945, 327 U.S. 358, 369, 66 S. Ct. 637, 90 L. Ed. 718. Cf. Sims v. United States, 4 Cir., 1958, 252 F.2d 434.

We were told at the hearing that a bill is now pending to repeal the statute. H. R. 8381, 85 Cong. 1st Sess., Sec. 4, pp. 4-5. We cannot give anticipatory effect to such an amendment, just as our brethren in the Fifth Circuit found themselves unable to give retroactive effect to the present law. Magness v. Commissioner, 5 Cir., 1957, 247 F.2d 740.

We think that the District Judge correctly interpreted the law.

Affirmed.

PARKER, Chief Judge, concurred in the result, but died before signing the opinion.