1978 U.S. Tax Ct. LEXIS 117">*124 Petitioner has the burden of proving that she is entitled to a child care deduction for 1973. Rule 142(a), Tax Court Rules of Practice and Procedure. In the case at hand the parties 70 T.C. 279">*282 stipulated that William is entitled to the dependency exemption for each of the three mionr children pursuant to the divorce decree and that he provided total child support of $ 8,250 ($ 2,750 for each child) during the calendar year at issue. The children therefore were not dependents of petitioner in 1973, but were dependents of her former husband. Since the children are not dependents of petitioner, they are not "qualifying individuals" as defined in section 214(b)(1). Therefore, we are compelled to conclude that petitioner has not met a specific requirement of section 214 and does not qualify for the child care expense deduction thereunder. The amount incurred in providing dependent care to petitioner's three minor children is a nondeductible personal expenditure pursuant to section 262. ⁶

1978 U.S. Tax Ct. LEXIS 117">*125 Petitioner contends that section 214 creates an unconstitutional classification by permitting the child care deduction to a class of individuals entitled to the dependency exemption while excluding from that class those individuals responsible for the physical, as opposed to the financial, care of the child if they are not entitled to claim the dependency exemption. She then continues to argue that all persons similarly situated in regard to the purposes of the legislation are not treated similarly. This, petitioner states, is a violation of the Fifth Amendment to the Constitution requiring the Federal Government to provide the same level of equal protection in its legislative enactments as required of State governments through the 14th Amendment. See, e.g., Johnson v. Robinson, 415 U.S. 361">415 U.S. 361, 415 U.S. 361">364 n. 4 (1974).

This is not the first time that the constitutionality of section 214 has been called into question. We examined exhaustively into the constitutionality of section 214(b) in Nammack v. Commissioner, 56 T.C. 1379">56 T.C. 1379 (1971), affd. per curiam 459 F.2d 1045">459 F.2d 1045 (2d Cir. 1972), and upheld it. In 1978 U.S. Tax Ct. LEXIS 117">*126 that case the taxpayer argued that section 214(b) unconstitutionally limited both the adjusted gross income and the amount deductible. In the recent case of Black v. Commissioner, 69 T.C. 505">69 T.C. 505 (1977), we followed our decision in 56 T.C. 1379">Nammack v. Commissioner, supra, and held that section 214 does not constitute unconstitutional discrimination on the basis of marital status, sex, or interference with family 70 T.C. 279">*283 relationships. These two cases tested section 214 against the "rational basis" standard as formulated by the Supreme Court. ⁷

1978 U.S. Tax Ct. LEXIS 117">*127 This, as petitioner concedes, is the applicable standard to apply in the instant case. In addition, a heavy burden is placed upon petitioner in challenging the constitutionality of a revenue measure, as stated by the Supreme Court in Nicol v. Ames, 173 U.S. 509">173 U.S. 509, 173 U.S. 509">514-515 (1899):

It is always an exceedingly grave and delicate duty to decide upon the constitutionality of an act of the congress of the United States. The presumption, as has frequently been said, is in favor of the validity of the act; and it is only when the question is free from any reasonable doubt that the court should hold an act of the lawmaking power of the nation to be in violation of that fundamental instrument upon which all the powers of the government rest. This is particularly true of a revenue act of congress. * * *

See also Penn Mutual Indemnity Co. v. Commissioner, 277 F.2d 16">277 F.2d 16 (3d Cir. 1960), affg. 32 T.C. 653">32 T.C. 653 (1959).

Petitioner argues that the result in the instant case should be the same as that reached in Moritz v. Commissioner, 469 F.2d 466">469 F.2d 466 (10th Cir. 1972), revg. 55 T.C. 113">55 T.C. 113 (1970),1978 U.S. Tax Ct. LEXIS 117">*128 cert. denied. We do not agree. Moritz dealt with the case of denying the dependent care deduction to an unmarried male who supported his invalid mother. The Court of Appeals for the Tenth Circuit held that the classification allowing the deduction to women, widowers, divorcees, and husbands under certain circumstances amounted to invidious discrimination based solely on sex. ⁸ The Tenth Circuit stated (469 F.2d 466">469 F.2d at 470):

We conclude that the classification is an invidious discrimination and invalid under due process principles. It is not one having a fair and substantial relation to the object of the legislation dealing with the amelioration of burdens on the taxpayer. See Reed v. Reed, supra, 404 U.S. at 76, 92 S. Ct. 251. The statute did not make the challenged distinction as part of a scheme dealing with the 70 T.C. 279">*284 varying burdens of dependents' care borne of taxpayers, but instead made a special discrimination premised on sex alone, which cannot stand. * * * [Emphasis supplied.]

1978 U.S. Tax Ct. LEXIS 117">*129 This is not the situation in the instant case. Here section 214 is neutral on its face by denying the child care deduction to anyone of either sex who is not entitled to claim the child for purposes of the dependency exemption. Furthermore, perfect equality or absolute logical consistency between persons subject to the Internal Revenue Code is not a constitutional sine qua non. Barter v. United States, 550 F.2d 1239">550 F.2d 1239 (7th Cir. 1977), affg. per curiam sub nom. Johnson v. United States, 422 F. Supp. 958">422 F. Supp. 958 (N.D. Ind. 1976).

It is irrelevant to petitioner's constitutional argument that the recently enacted child care credit (repealing the dependent care deduction) would include her within the expanded class of individuals entitled to the credit which now includes a divorced or separated parent who has custody of a child for the greater part of the taxable year, notwithstanding the right of the other spouse to the dependency exemption. Petitioner argues that this broad classification is what Congress intended, but mistakenly omitted, in section 214.

We find petitioner's argument to be more chimerical than substantive. The 1978 U.S. Tax Ct. LEXIS 117">*130 mere fact that Congress has not, in the past, favored petitioner is not grounds for asserting that Congress exceeded its constitutional authority. ⁹

It is well settled that deductions are a matter of legislative grace. New Colonial Ice Co. v. Helvering, 292 U.S. 435">292 U.S. 435 (1934); Harper Oil Co. v. United States, 425 F.2d 1335">425 F.2d 1335 (10th Cir. 1970). Prior to the enactment of section 214 in 1954, child care expenses incurred by custodial parents were nondeductible personal expenditures. O'Connor v. Commissioner, 6 T.C. 323">6 T.C. 323 (1946). The legislative history is silent as to the intent of Congress in limiting the deduction to taxpayers entitled to the dependency exemption. S. Rept. 1622, 83d Cong., 2d Sess. 35, 220 (1954). What becomes apparent from the legislative history of section 214 is that Congress intended to allow a dependent care deduction to a limited1978 U.S. Tax Ct. LEXIS 117">*131 class of individuals under defined circumstances. See, e.g., S. Rept. 69, 88th Cong., 1st Sess. 1 70 T.C. 279">*285 (1963), 1963-1 C.B. 415; S. Rept. 830, 88th Cong., 2d Sess. 68 (1964), 1964-1 C.B. (Part 2) 505, 572; H. Rept. 1149, 88th Cong., 2d Sess. 29 (1964), 1964-1 C.B. (Part 2) 774, 802; S. Rept. 92-437, 92d Cong., 1st Sess. 59 (1971), 1972-1 C.B. 559, 561. ¹⁰ Thus the objective of section 214, in the case at hand, is the allowance of the child care deduction to a parent entitled to claim the minor as a dependent.

The test for whether a classification treats all persons similarly circumstanced1978 U.S. Tax Ct. LEXIS 117">*132 alike is that it must be reasonable and rest upon some ground of difference having a fair and substantial relation to the object of the legislation. Reed v. Reed, 404 U.S. 71">404 U.S. 71 (1971). The constitutional safeguard of equal protection is offended only if the classification rests on grounds entirely irrelevant to the achievement of the statute's objective. Furthermore, the Supreme Court has stated the following concerning the equal protection clause: "A legislative classification will not be set aside if any state of facts rationally justifying it is demonstrated to or perceived by the courts." (Emphasis supplied.) United States v. Maryland Savings-Share Ins. Corp., 400 U.S. 4">400 U.S. 4, 400 U.S. 4">6 (1970). See also McGowan v. Maryland, 366 U.S. 420">366 U.S. 420, 366 U.S. 420">426 (1960). In the instant case, respondent need not demonstrate that Congress actually considered such a state of facts provided the facts are perceptible to this Court. See 400 U.S. 4">United States v. Maryland Savings-Share Ins. Corp., supra;Kellems v. Commissioner, 58 T.C. 556">58 T.C. 556 (1972), affd. per curiam 474 F.2d 1399">474 F.2d 1399 (2d Cir. 1973).1978 U.S. Tax Ct. LEXIS 117">*133

We believe that Congress was within the bounds of its constitutional power when section 214 was enacted. It is conceivable Congress believed that only the custodial parent who is entitled to the dependency exemption for the child should be allowed the child care deduction. Moreover, an egregious result and administrative problems might obtain if the custodial parent is allowed the child care deduction in a case where such parent is not entitled to the dependency exemption. An example of this is the case where the only payments made by the custodial parent from after tax dollars are earmarked as deductible child care expenses while all other payments for dependent care expenses come from nontaxable child support 70 T.C. 279">*286 payments. Such potential for abuse alone is sufficient reason for Congress denying the child care deduction to the custodial divorced parent who is not entitled to the dependency exemption under section 152(e)(2).

Another reason we perceive for upholding the constitutionality of section 214 is that Congress may have been cognizant of the administrative burdens and practical problems of enforcement in allowing the child care deduction to the custodial parent1978 U.S. Tax Ct. LEXIS 117">*134 and simultaneously allowing the noncustodial parent the dependency exemption. As the Supreme Court stated in Metropolis Theatre Co. v. Chicago, 228 U.S. 61">228 U.S. 61, 228 U.S. 61">69-70 (1913):

The problems of government are practical ones and may justify, if they do not require, rough accommodations * * *. It is only its palpably arbitrary exercises which can be declared void under the Fourteenth Amendment; * * *

If an employed custodial parent who cannot claim the dependency exemption were allowed the child care deduction then many more cases involving the administrative problems of tracing cash payments for child care expenses would arise than under section 214 as written. For all of the above reasons, we have no difficulty in holding the legislative classification in question well within the congressional power to classify for tax purposes. See 56 T.C. 1379">Nammack v. Commissioner, supra;69 T.C. 505">Black v. Commissioner, supra.

Although not raised in petitioner's petition or addressed in her brief, respondent correctly argues that the question of whether social security taxes paid attributable to child care expenses are deductible1978 U.S. Tax Ct. LEXIS 117">*135 turns on the deductibility of the aforementioned expenses. Since we have held that petitioner is denied the dependent care deduction for child care expenses incurred while she was gainfully employed, the social security taxes paid are also nondeductible. ¹¹ Accordingly, we hold that petitioner is denied the claimed deduction for social security taxes paid.

Decision will be entered for the respondent.