Umbach v. Commissioner ( 2003 )


Menu:
  •                     UNITED STATES COURT OF APPEALS
    TENTH CIRCUIT
    ERIC N. UMBACH and JOSEPH D.
    SPECKING,
    Petitioners - Appellants,
    v.                                               Nos. 02-9006 and 02-9007
    COMMISSIONER OF INTERNAL
    REVENUE,
    Respondent - Appellee.
    ORDER
    Filed January 29, 2004
    Before MURPHY, HARTZ and McCONNELL, Circuit Judges.
    Appellee’s motion to publish the order and judgment dated December 11,
    2003, is granted. A copy of the published opinion is attached.
    Entered for the Court
    Patrick Fisher, Clerk of Court
    By:
    Amy Frazier
    Deputy Clerk
    F I L E D
    United States Court of Appeals
    Tenth Circuit
    PUBLISH
    DEC 11 2003
    UNITED STATES COURT OF APPEALS
    PATRICK FISHER
    Clerk
    TENTH CIRCUIT
    ERIC N. UMBACH,
    Petitioner-Appellant,
    v.                                           No. 02-9006
    COMMISSIONER OF INTERNAL
    REVENUE,
    Respondent-Appellee.
    JOSEPH D. SPECKING,
    Petitioner-Appellant,
    v.                                           No. 02-9007
    COMMISSIONER OF INTERNAL
    REVENUE,
    Respondent-Appellee.
    APPEALS FROM THE UNITED STATES TAX COURT
    (T. C. Nos. 12348-99 and 12010-99)
    Submitted on the briefs:
    Kenneth W. McWade, Kailua, Hawaii, for Petitioners-Appellants.
    Eileen J. O’Connor, Assistant Attorney General, David English Carmack and
    Kenneth W. Rosenberg, Attorneys, Tax Division, Department of Justice,
    Washington, D.C., for Respondent-Appellee.
    Before MURPHY , HARTZ , and McCONNELL , Circuit Judges.
    HARTZ , Circuit Judge.
    In these appeals we decide whether taxpayers Eric N. Umbach and Joseph
    D. Specking (Taxpayers) may exclude from gross income their compensation
    earned while working on Johnston Island, a United States possession, in 1995,
    1996, and 1997. Taxpayers sought to exclude their compensation under either
    
    26 U.S.C. § 911
    , which excludes income earned in a foreign country, or 
    26 U.S.C. § 931
    , which excludes income earned in a “specified possession” of the United
    States. We review these legal issues de novo,    see Twenty Mile Joint Venture,
    PND, Ltd. v. Comm’r , 
    200 F.3d 1268
    , 1275 (10th Cir. 1999), and hold that the
    compensation is not excludable under either section. Accordingly, we affirm the
    decision of the Tax Court,   Specking v. Comm’r , 
    117 T.C. 95
     (2001).   1
    1
    After examining the briefs and appellate record, this panel has determined
    unanimously to grant the parties’ request for a decision on the briefs without oral
    argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). These cases are
    therefore ordered submitted without oral argument.
    -2-
    BACKGROUND
    The parties have stipulated to the facts. Taxpayers worked for Raytheon
    Engineers and Constructors, Inc. (Raytheon) on Johnston Island in 1995, 1996,
    and 1997. Johnston Island is located approximately 700 miles west-southwest of
    Honolulu, Hawaii. It is part of the Johnston Atoll, a United States military
    installation and bird refuge.
    For the 1995, 1996, and 1997 tax years, Mr. Umbach reported wage income
    from Raytheon on his tax return in the amounts of $97,492, $103,112, and
    $100,659, respectively. Mr. Specking reported wage income from Raytheon for
    the same years in the amounts of $74,552, $85,385, and $95,246, respectively.
    On their 1997 tax returns both deducted $70,000 from their wage income.        See
    Tax Reform Act of 1986, Pub. L. No. 99-514, § 1233(a), 
    100 Stat. 2085
    , 2564
    (1986) (establishing $70,000 maximum for annual foreign-earned-income
    exclusion for years at issue here). Also, both filed amended returns for 1995 and
    1996, claiming refunds because $70,000 of their wage income was excludable
    from gross income under § 911 or § 931. They asserted on these amended returns
    that under § 931 and 
    26 C.F.R. § 1.931-1
     their earnings from Johnston Island
    were earned income from a foreign source and therefore excludable as foreign
    income.
    -3-
    After allowing tax refunds for 1995 and 1996, the Internal Revenue Service
    (IRS) sent deficiency notices for tax years 1995, 1996, and 1997, disallowing the
    claimed $70,000 exclusions. The IRS denied the exclusions because (1) Johnston
    Island is not a foreign country and therefore the earned income was not
    excludable under § 911, and (2) Taxpayers were not bona fide residents of a
    “specified possession” as defined in § 931(c) and therefore did not qualify for
    income exclusion under § 931.
    Taxpayers petitioned the Tax Court for a redetermination of the
    deficiencies. The Tax Court affirmed the view of the Commissioner.
    JURISDICTION
    As a preliminary matter, we consider our jurisdiction over these appeals.
    This court requested that the parties brief whether the notices of appeal in both
    appeals were timely filed. We agree with the parties that the appeals are timely.
    The Tax Court entered its decisions in these cases on February 1, 2002. Under
    
    26 U.S.C. § 7483
     and Fed. R. App. P. 13(a)(1), the ninety-day deadline to file a
    timely notice of appeal expired on May 2. Although the notices of appeal were
    not filed until May 9, their envelopes were postmarked April 29. According to
    
    26 U.S.C. § 7502
    , these postmarks establish timely filings within the ninety-day
    deadline. See also Fed. R. App. P. 13(b) (recognizing notice of appeal mailed to
    Tax Court “is considered filed on the postmark date, subject to § 7502”).
    -4-
    Accordingly, we exercise jurisdiction over these appeals under 
    26 U.S.C. § 7482
    (a)(1).
    ANALYSIS
    The Internal Revenue Code broadly defines gross income as “all income
    from whatever source derived.” 
    26 U.S.C. § 61
    (a). “Thus, any gain constitutes
    gross income unless the taxpayer demonstrates that it falls within a specific
    exemption.” Brabson v. United States , 
    73 F.3d 1040
    , 1042 (10th Cir. 1996);
    see also Comm’r v. Glenshaw Glass Co. , 
    348 U.S. 426
    , 430 (1955). Unlike the
    sweeping inclusion of § 61(a), exclusions from income are narrowly construed.
    See Comm’r v. Schleier , 
    515 U.S. 323
    , 327-28 (1995). They “are not to be
    implied; they must be unambiguously proved.”     United States v. Wells Fargo
    Bank , 
    485 U.S. 351
    , 354 (1988). Taxpayers therefore must clearly bring
    themselves within the terms of the statutes they point to as granting an exemption.
    See Jones v. Kyle , 
    190 F.2d 353
    , 353 (10th Cir. 1951).
    I. Applicability of § 931
    As amended by the Tax Reform Act of 1986 (TRA), § 931 provides in part:
    (a) General Rule. –In the case of an individual who is a bona
    fide resident of a specified possession during the entire taxable year,
    gross income shall not include–
    (1) income derived from sources within any specified
    possession, and
    (2) income effectively connected with the conduct of a
    trade or business by such individual within any specified possession.
    -5-
    
    26 U.S.C. § 931
    (a)(1), (2). The statute defines a “specified possession” as Guam,
    American Samoa, or the Northern Mariana Islands.       
    Id.
     § 931(c). Prior to the
    TRA, § 931 excluded income from sources within various United States
    possessions, including Johnston Island, from gross income if certain conditions
    were met. See Farrell v. United States , 
    313 F.3d 1214
    , 1219 (9th Cir. 2002).
    Thus, Taxpayers’ income from Johnston Island would be excluded under the old
    version but not the new. That is not disputed by the parties. What the parties do
    dispute is which version of § 931 applies. Resolution of the dispute turns on the
    effective-date provisions of the TRA.
    The amendment to § 931 appears in § 1272 of the TRA, which is contained
    in Subtitle G of Title XII of that statute. The effective date provision for this
    subtitle is § 1277, which states, in pertinent part:
    SEC. 1277. EFFECTIVE DATE
    (a) IN GENERAL.–Except as otherwise provided in this
    section, the amendments made by this subtitle shall apply to taxable
    years beginning after December 31, 1986.
    (b) SPECIAL RULE FOR GUAM, AMERICAN SAMOA,
    AND THE NORTHERN MARINA ISLANDS.–The amendments
    made by this subtitle shall apply with respect to Guam, American
    Samoa, or the Northern Mariana Islands (and to residents thereof and
    corporations created or organized therein) only if (and so long as) an
    implementing agreement under section 1271 is in effect between the
    United States and such possession.
    Tax Reform Act of 1986, Pub. L. No. 99-514, § 1277(a), (b), 
    100 Stat. 2085
    , 2600
    (1986).
    -6-
    Taxpayers rely on subsection (b). They assert that because Guam,
    American Samoa, and the Northern Mariana Islands have not enacted the required
    implementing agreements, the old version of § 931 still applies. Although they
    claim support for their position in some language of the Tax Court opinion in
    their case, we think they misread the opinion. In any event, we are not bound by
    that opinion, see Twenty Mile Joint Venture , 
    200 F.3d at 1275
    , and reject their
    argument.
    Section 1277(a) states that the new version of I.R.C. § 931 applies to
    taxable years beginning after December 31, 1986, unless another subsection
    provides otherwise. But subsection (b) (the only one possibly applicable here)
    speaks only of the amendments in Subtitle G as they apply with respect to Guam,
    American Samoa, or the Northern Mariana Islands. Subsection (b) thus has no
    effect on the law regarding Johnston Island. The statutory language is clear, and
    we see no reason to believe that we are missing the intended meaning. Taxpayers
    have offered no explanation why the tax law regarding Johnston Island should be
    affected by agreements between the United States and the three named
    possessions. We note that the Ninth Circuit has read the statute the same as we
    have. See Farrell , 
    313 F.3d at 1219
     (contingency of signed agreements between
    United States and three specified possessions affects only taxable income derived
    -7-
    from sources within those possessions and does not affect income derived from
    sources within other United States possessions).
    Taxpayers find support for their position in the Treasury regulation
    interpreting § 931. To be sure, since 1975, 
    26 C.F.R. § 1.931-1
     has listed
    Johnston Island among the “possessions of the United States” to which § 931
    applies. See 
    40 Fed. Reg. 50,260
     (Oct. 29, 1975). An interpretative regulation,
    however, can hardly override clear statutory language.          See Scofield v. Lewis ,
    
    251 F.2d 128
    , 132 (5th Cir. 1958). Also, it is obvious that §1.931-1(a)(1) is not
    interpreting the new § 931. Although the Treasury Secretary should update
    Treasury regulations to conform to the law,         see 
    26 U.S.C. § 7805
    (a), it is
    unfortunately true that “[t]he Treasury’s relaxed approach to amending its
    regulations to track Code changes is well documented,”          United Dominion Indus.,
    Inc. v. United States , 
    532 U.S. 822
    , 836 (2001). We agree with the Ninth Circuit
    that the regulation is simply incorrect with reference to Johnston Island.           See
    Farrell , 
    313 F.3d at 1219
    .
    There may be more merit to Taxpayers’ contention that the Commissioner’s
    failure to amend § 1.931-1 for many years after the TRA should preclude any
    additions to tax until the regulation is amended and should entitle them to
    abatement of interest under 
    26 U.S.C. § 6404
    (e) for the three tax years at issue.
    They have failed to show, however, that they presented this argument to the Tax
    -8-
    Court. See 10th Cir. R. 28.2(C)(2). The argument therefore is not properly
    before us and we will not consider it.   See Lopez v. Behles (In re Am. Ready Mix,
    Inc.) , 
    14 F.3d 1497
    , 1502 (10th Cir. 1994).
    II. Applicability of § 911
    As relevant here, § 911 provides:
    (a) Exclusion from gross income. –At the election of a
    qualified individual . . ., there shall be excluded from the gross
    income of such individual, and exempt from taxation under this
    subtitle, for any taxable year–
    (1) the foreign earned income of such individual . . . .
    
    26 U.S.C. § 911
    (a)(1). “Foreign earned income” is the amount an individual
    receives “from sources within a foreign country . . . which constitute[s] earned
    income attributable to services performed by such individual” during the
    applicable time period described in 
    26 U.S.C. § 911
    (d)(1)(A) or (B).     
    Id.
    § 911(b)(1)(A). Under § 911(d)(1)(A) or (B), to qualify for the exclusion, the
    individual’s tax home must be in a foreign country and the individual must be
    a United States citizen who has been a bona fide resident of the foreign country
    for the entire tax year or a United States citizen or resident who has been present
    in the foreign country for at least 330 full days during twelve consecutive months.
    See also 
    26 C.F.R. § 1.911-2
    (a). The regulations define a “foreign country”
    as “any territory under the sovereignty of a government other than that of the
    United States,” 
    id.
     § 1.911-2(h), and “United States” to “include[] any territory
    -9-
    under the sovereignty of the United States[,]” including its “possessions and
    territories,” id. § 1.911-2(g).
    Taxpayers do not dispute that Johnston Island is not a foreign country, but
    is instead a United States possession. Thus, as the Tax Court stated:
    Inasmuch as Johnston Island does not fall within the definition of a
    foreign country, the compensation [Taxpayers] earned on Johnston
    Island does not come within the definition of “foreign earned
    income”, nor was their “tax home” in a foreign country. Sec.
    911(b)(1)(A) and (d). Consequently, [they] cannot satisfy the
    requirements for the exclusion from income provided by section 911.
    Specking , 
    117 T.C. at 113
    ; see also Farrell , 
    313 F.3d at 1218
    .
    Understandably, then, Taxpayers do not rely on the language of § 911. Nor
    do they rely on its accompanying regulations. Rather they rely on a regulation
    interpreting § 931. That regulation, 
    26 C.F.R. § 1.931-1
    (b)(2), provides:
    Relationship of sections 931 and 911.   A citizen of the United States
    who cannot [qualify under] section 931 but who receives earned
    income from sources within a possession of the United States, is not
    deprived of the benefits of the provisions of section 911 (relating to
    the exemption of earned income from sources outside the United
    States), provided he meets the requirements thereof . In such a case
    none of the provisions of section 931 is applicable in determining the
    citizen’s tax liability. . . .
    
    26 C.F.R. § 1.931-1
    (b)(2) (emphasis added).
    Taxpayers’ reliance is misplaced. The quoted provision does not purport to
    expand § 911 benefits. All it is saying is that failure to qualify for § 931 benefits
    does not in itself disqualify the citizen from § 911 benefits. By the regulation’s
    -10-
    very terms, a citizen can receive the benefits of § 911 only if he or she meets that
    section’s requirements. Neither of the Taxpayers satisfied § 911.
    CONCLUSION
    Taxpayers cannot exclude from gross income their compensation earned
    while working on Johnston Island under either § 931 or § 911. Accordingly, we
    AFFIRM the Tax Court’s judgments.
    -11-