77 T.C. 867">*868 Respondent asserted deficiencies in petitioners' income taxes as follows:

In his answer, respondent alleged that petitioners were liable for additions to tax pursuant to section 6653(a)¹ in the following amounts:

1981 U.S. Tax Ct. LEXIS 44">*49 After concessions by the parties, the issues remaining are: (1) The constitutionality of the so-called marriage penalty; (2) whether, under section 6013, petitioners may change their filing status to joint; (3) whether petitioner James O. Druker is entitled to a home office deduction for 1976; and (4) whether petitioners are liable for the additions to tax under section 6653(a).

FINDINGS OF FACT

Some of the facts have been stipulated and are found accordingly. Only those facts necessary to our decision on the disputed issues will be set forth.

Petitioners resided in New York, N.Y., at the time the petition herein was filed. At all times pertinent to this proceeding, James O. Druker (James) and Joan S. Druker (Joan) were married to each other.

James filed timely Federal income tax returns for 1975 and 1976 as a married individual filing a separate return. However, he computed his tax liability for said years according to the provisions of the Internal Revenue Code of 1954 applicable to an unmarried individual. Joan timely filed her tax returns for 1975 and 1976 in the same manner. Respondent determined 77 T.C. 867">*869 that each of the petitioners was subject to tax at the rates applicable1981 U.S. Tax Ct. LEXIS 44">*50 to married individuals filing separately.

Prior to the filing of petitioners' 1975 returns, James consulted with the U.S. attorney for the Eastern District of New York and with individuals in respondent's Intelligence Division. He explained that he and his wife wished to challenge the marriage penalty, but wanted to be certain that there could be no claims of fraud or willfulness. Following these conversations, petitioners filed their returns for 1975 as described above (see p. 868 supra) with the following letter addressed to respondent attached:

Dear Sir:

After due consideration, my wife and I have decided that, although we do not qualify under the existing tax laws, we are going to apply Table X (for single persons) in calculating the amount of income tax due and owing by us for the calendar year 1975. The reason for this is that we feel most strongly that the present income tax structure unfairly discriminates against working married couples, and as such is violative of the equal protection clause of the Fourteenth Amendment to the United States Constitution.

In order to avoid any legitimate claim of fraud on our part, we are attaching copies of this letter to the separate1981 U.S. Tax Ct. LEXIS 44">*51 income tax returns which we are filing on this date. Moreover, we have checked off the "married, filing separately" box on our returns so that the computer will not overlook the discrepancy between our marital status and the fact that we have applied the single persons' table to our returns.

We are perfectly prepared to litigate this matter, and to pay any taxes due plus interest in the event that we do not prevail. We feel that this course is preferable to that of the sham December 31st divorce -- January 1st remarriage used by so many couples to legally obtain a single person's filing status. Indeed, we are unable to comprehend why we should pay several thousand dollars more in taxes than if we chose to get a divorce for one day out of each year. We are confident that the Courts will similarly be unable to see the rationale for these obvious inequities.

Each letter ended with a cross-reference to the spouse's social security number to enable respondent to match the returns. The same letter, with the dates changed, was filed with petitioners' 1976 returns.

On April 24, 1979, James requested a recomputation of petitioners' deficiencies for 1975 and 1976 based on joint filing1981 U.S. Tax Ct. LEXIS 44">*52 status. Petitioners intended to litigate the constitutionality of the marriage penalty, but wanted the amount of any decision entered against them to be computed using the schedule in section 1(a).

Prior to January 1975 and subsequent to January 1978, 77 T.C. 867">*870 James was an attorney engaged in private practice. From January 1975 to July 1976, he worked in the U.S. Attorney's Office. From July 1976 to January 1978, he was employed by the Nassau County (New York) district attorney's office.

During 1976, neither of James' employers required him to maintain an office in his home as a condition of his employment. Nonetheless, during 1976, he maintained an office in the third bedroom of his apartment, which was solely used to hold his law books and legal files from his prior ( and planned future) private practice. He reported no income from the private practice of law in 1976.

James claimed $ 1,440 of the $ 7,304.90 rental expense he and Joan incurred for their residence as a home office deduction on his 1976 return.

OPINION

The primary issue presented herein is the constitutionality of the so-called marriage penalty. ²1981 U.S. Tax Ct. LEXIS 44">*54 Although this is the first time this issue has been presented1981 U.S. Tax Ct. LEXIS 44">*53 to this Court, other courts have extensively discussed and rejected the arguments asserted herein by petitioners. Johnson v. United States, 422 F. Supp. 958">422 F. Supp. 958 (N.D. Ind. 1976), affd. per curiam sub nom. Barter v. United States, 550 F.2d 1239">550 F.2d 1239 (7th Cir. 1977), cert. denied 434 U.S. 1012">434 U.S. 1012 (1978); Mapes v. United States, 217 Ct. Cl. 115">217 Ct. Cl. 115, 576 F.2d 896">576 F.2d 896 cert. denied 439 U.S. 1046">439 U.S. 1046 (1978). Moreover, we rejected many of these arguments when advanced by a single taxpayer who believed that the tax rates then in effect unconstitutionally discriminated against unmarried individuals. ³Kellems 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).

77 T.C. 867">*871 We are in agreement with the result and rationale of Johnson and Mapes. Since the facts of this case are not in dispute and only legal issues are involved, little would be added by our writing another treatise on this matter. Thus, we shall dispose of most of petitioners' arguments by reference to the discussion of them in the prior cases.

Petitioners primarily rely upon Hoeper v. Tax Commission, 284 U.S. 206">284 U.S. 206 (1931). We believe that the distinctions drawn in 217 Ct. Cl. 115">Mapes v. United States, supra, between the Supreme Court's holding in Hoeper and the instant situation, i.e., that a married individual may file separately and be taxed on only his or her own income, 1981 U.S. Tax Ct. LEXIS 44">*55 albeit at a rate schedule which depends on marital status (see 576 F.2d 896">576 F.2d at 902), adequately respond to petitioners' arguments. ⁴ See also Hospital Data Center of S.C. v. United States, 225 Ct. Cl.   , 634 F.2d 541">634 F.2d 541, 634 F.2d 541">546 n. 16 (1980); 422 F. Supp. 958">Johnson v. United States, supra at 966-968; Jennemann v. Commissioner, 67 T.C. 906">67 T.C. 906, 67 T.C. 906">910-911 (1977); Kellems v. Commissioner, 58 T.C. 556">58 T.C. 560.

Petitioners next argue that the separate tax rates work an invidious1981 U.S. Tax Ct. LEXIS 44">*56 discrimination against married women and are, therefore, unconstitutional. Relying on Califano v. Westcott, 443 U.S. 76">443 U.S. 76 (1979), they argue that, since the rate schedules have roots in the archaic premise that married women remain at home as non-earners to bear and raise children, the rate schedules cannot withstand scrutiny under the due process clause of the Fifth Amendment. The statute struck down in Westcott is clearly distinguishable; it limited benefits to families with unemployed fathers without regard to which spouse was the family breadwinner. The Court focused on the gender distinction not being substantially related to any important and valid governmental objective. The provisions of the Code being challenged herein, however, are gender neutral. See secs. 1, 63(d). See generally sec. 7701(a)(17) and (d)(3). Thus, they do not suffer from that constitutional infirmity. See generally Mapes v. United States, 217 Ct. Cl. 115">217 Ct. Cl. at 123-125, 576 77 T.C. 867">*872 F.2d at 901-902; Johnson v. United States, 422 F. Supp. 958">422 F. Supp. at 968-969.

Finally, petitioners argue that, in light of 1981 U.S. Tax Ct. LEXIS 44">*57 the recent State court decisions removing certain of the property right distinctions between married people and couples simply cohabiting (see Morone v. Morone, 50 N.Y.2d 481">50 N.Y.2d 481, 407 N.E.2d 438">407 N.E.2d 438, 429 N.Y.S.2d 592">429 N.Y.S.2d 592 (1980); Marvin v. Marvin, 18 Cal. 3d 660">18 Cal. 3d 660, 557 P.2d 106">557 P.2d 106, 134 Cal. Rptr. 815">134 Cal. Rptr. 815 (1976)), the Federal laws drawing such distinctions no longer have a rational basis. This argument is, at best, disingenuous. Marvin and Morone merely held that unmarried individuals cohabiting may freely contract to share their earnings, property, or expenses. In fact, both cases strongly supported the institution of marriage. 50 N.Y.2d 481">50 N.Y.2d at 484; 407 N.E.2d 438">407 N.E.2d at 439, 429 N.Y.S.2d 592">429 N.Y.S.2d at 593; 18 Cal. 3d 660">18 Cal. 3d at 684, 557 P.2d 106">557 P.2d at 122, 134 Cal. Rptr. 815">134 Cal. Rptr. at 831. ⁵ Petitioners would have us hold that the distinction drawn between married and unmarried individuals is irrational on the basis of their erroneous interpretations1981 U.S. Tax Ct. LEXIS 44">*58 of State court decisions. This we are not prepared to do.

Moreover, although State law determines marital status (see Boyter v. Commissioner, 74 T.C. 989">74 T.C. 989, 74 T.C. 989">994 (1980)), Federal law, including the Constitution, governs the validity and interpretation of the Federal tax consequences of such a determination. The constitutional parameters of the question before us have been thoroughly explored in 422 F. Supp. 958">Johnson v. United States, supra, and 217 Ct. Cl. 115">Mapes v. United States, supra, and the attack on the so-called 1981 U.S. Tax Ct. LEXIS 44">*59 marriage penalty rejected in full recognition of the fact that some inequity (and indeed discrimination) is involved but that "No scheme of taxation, whether the tax is imposed on property, income, or purchases of goods and services, has yet been devised which is free of all discriminatory impact." See San Antonio Independent School District v. Rodriguez, 411 U.S. 1">411 U.S. 1, 411 U.S. 1">42 (1973). We think it sufficient for us to state that the 77 T.C. 867">*873 differences in exposure to tax liability between married and single persons ⁶ do not rise to the level of an impermissible interference with the enjoyment of the fundamental right to marry or remain married.

Having rejected petitioners' claim that the rate schedules and other provisions making up the "marriage1981 U.S. Tax Ct. LEXIS 44">*60 penalty" are unconstitutional, we turn next to their alternative argument that they are entitled to change their filing status from married filing separately to married filing jointly. Although, in general, taxpayers may change their filing status from separate to joint (sec. 6013(b)(1)), the making of such an election is limited by section 6013(b)(2).

Section 6013(b)(2) provides, in relevant part:

(2) Limitations for making of election. -- The election provided for in paragraph (1) may not be made --

* * * *

(B) after the expiration of 3 years from the last date prescribed by law for filing the return for such taxable year (determined without regard to any extension of time granted to either spouse); or

(C) after there has been mailed to either spouse, with respect to such taxable year, a notice of deficiency under section 6216, if the spouse, as to such notice, files a petition with the Tax Court within the time prescribed in section 6213; * * *