Whitaker, Judge,
delivered the opinion of the court:
Plaintiffs are husband and wife. For the fiscal years ending July 31, 1950 and July 31, 1951, they filed joint returns and paid taxes accordingly. The Commissioner of Internal Bevenue ruled that they should have filed separate returns and, since the wife had no income, he asserted a deficiency against the husband based upon a separate return by him of the entire income.
For this deficiency plaintiffs sue.
The position of the Commissioner that plaintiffs were not entitled to file a joint return is based on a technicality. Except for this technicality they were clearly entitled to do so. Since defendant’s position is technical, we shall examine it technically.
In both of the taxable years in question the wife had no income of her own, but this fact did not deprive them of the right to file a joint return. Section 51 (b) (1) of the Internal Bevenue Code of 1939, as amended by section 303 of the Bevenue Act of 1948 (62 Stat. 110, 115), expressly so provides. This was for the purpose of giving to married couples in all States the same rights enjoyed by them in community-property States, where each spouse was entitled to one-half of the income, irrespective of the amount earned by or accruing to each.
But defendant says that, while as a general rule married couples may file a joint return, section 51 (b) (3) of the Code prevents them from doing so when the husband and wife have different taxable years, which, it says, is the case here. Is this true?
Plaintiffs were married on June 6, 1948. Prior to their marriage the wife was employed, had an income, and filed income tax returns. These were made on a calendar year basis. She quit work in April 1948, in anticipation of her marriage in June following, since which time she has had no income. Her last separate tax return was for the calendar year 1948. She filed no return for the period January 1, 1949 to July 31, 1949, her last taxable year, as defined in section 48 of the Code, because she had no income during that time. The return for August 1, 1949 to July 31, 1950, was a joint return. For years previously the husband had [325]*325filed his returns on the basis of a fiscal year from and including August 1 to July 31 of the following year.
In such a situation, have the husband and wife different taxable years? If not, they are clearly entitled to file a joint return. The wife’s last taxable year ended on December 31,1948.
Section 48 of the Code defines a “taxable year” as “the calendar year, or the fiscal year * * * upon the basis of which the net income is computed under this Part,” which may be for 12 months or a fractional part thereof. The wife’s last taxable year ended on December 31,1948. Thereafter she had no taxable year, because she had no income upon which to compute taxes. A taxable year denotes the period for which taxes are levied. If none are levied, then there is no taxable year. Since April 1948 the wife had had no income upon which to compute taxes and, therefore, had no “taxable year” when the joint return was filed, or when the period covered by the return began.
If the wife has no taxable year, the husband and wife cannot have different taxable years and, hence, subsection (3) of 51 (b) does not apply.
So much for the technicalities. The result arrived at, we think, accords with the intent of Congress. Congress could not have intended subsection (3) to apply to a case where one of the spouses had no income. The inconvenience, if not the impossibility, of consolidating income where each spouse has income in taxable years ending on different days does not exist in a case where one spouse has no income.
It was not necessary for the wife to make application to change her basis for reporting her income from a calendar year basis to a fiscal year basis, as defendant contends, because she had no income to report.
Plaintiffs are entitled to recover, together with interest as provided by law, and judgment will be entered to that effect. The amount of the recovery will be determined pursuant to Eule 38 (c). If the parties desire to file a stipulation showing the amount due computed in accordance with this opinion, they may have thirty days in which to do so.
It is so ordered.
[326]*326Laramore, Judge; Madden, Judge; Littleton, Judge; and Jones, Chief Judge, concur.
FINDINGS OF FACT
The court, having considered the evidence, the stipulation of facts entered into between the parties, and the briefs and argument of counsel, makes findings of fact as follows:
1. The plaintiffs are husband and wife, who reside in Mississippi. Their address is Broadmoor Place, Gulfport, Mississippi.
2. For the fiscal years ending July 31, 1950 and July 31, 1951, the plaintiff Frank E. Bertucci, and his wife, the plaintiff Ardeth Bertucci, as husband and wife, duly filed with the Collector of Internal Bevenue, Jackson, Mississippi, Federal income tax returns.
3. The plaintiff, Frank E. Bertucci, and his wife, the plaintiff Ardeth Bertucci, were married on June 6, 1948. The plaintiffs have at all times since their said marriage resided in the State of Mississippi. Mississippi is not a community property state.
4. Prior to her marriage to the plaintiff, Frank E. Bertucci, the plaintiff Ardeth Bertucci was employed and earned taxable income. She terminated her employment in April 1948, and since her marriage in June 1948 to the plaintiff Frank E. Bertucci, she has not been employed. The plaintiff Ardeth Bertucci has not since April 1948 earned or received any taxable income from any source. For the years 1947 and 1948, the plaintiff Ardeth Bertucci duly filed a separate Federal income tax return on a calendar year basis, reporting thereon the taxable income earned prior to her marriage, as aforesaid. The plaintiff Ardeth Bertucci has not since the year 1948 filed separate Federal income tax returns.
5. The plaintiff Frank E. Bertucci is the principal member of a partnership engaged in the wholesale beer distributing business, known as the F. E. B. Distributing Company, Gulfport, Mississippi. Said partnership, for the periods here involved, and for many years prior thereto, kept its records and filed its Federal income tax returns on a fiscal year basis ending on July 31.
[327]*3276. The plaintiff Frank E. Bertucci, for a number of years prior to the fiscal year ending July 31,1950, had filed Federal income tax returns on a fiscal year basis ending on July 31. For the fiscal years ending July 31, 1950 and July 31, 1951, the plaintiff Frank E. Bertucci, and the plaintiff Ardeth Bertucci, as husband and wife, filed with the Collector of Internal Revenue, Jackson, Mississippi, joint Federal income tax returns, reporting as the only taxable income for said fiscal years the distributive share of the plaintiff Frank E. Bertucci of the income of the partnership F. E. B. Distributing Company for the fiscal year July 31, 1950 and July 31, 1951, respectively. The plaintiffs duly paid the Federal income taxes shown to be due on said returns.
7. The Commissioner of Internal Revenue, through the District Director of Internal Revenue, Jackson, Mississippi, took the position that under Section 51 (b) (3) of the Internal Revenue Code of 1939, as amended, the plaintiff Frank E.
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Whitaker, Judge,
delivered the opinion of the court:
Plaintiffs are husband and wife. For the fiscal years ending July 31, 1950 and July 31, 1951, they filed joint returns and paid taxes accordingly. The Commissioner of Internal Bevenue ruled that they should have filed separate returns and, since the wife had no income, he asserted a deficiency against the husband based upon a separate return by him of the entire income.
For this deficiency plaintiffs sue.
The position of the Commissioner that plaintiffs were not entitled to file a joint return is based on a technicality. Except for this technicality they were clearly entitled to do so. Since defendant’s position is technical, we shall examine it technically.
In both of the taxable years in question the wife had no income of her own, but this fact did not deprive them of the right to file a joint return. Section 51 (b) (1) of the Internal Bevenue Code of 1939, as amended by section 303 of the Bevenue Act of 1948 (62 Stat. 110, 115), expressly so provides. This was for the purpose of giving to married couples in all States the same rights enjoyed by them in community-property States, where each spouse was entitled to one-half of the income, irrespective of the amount earned by or accruing to each.
But defendant says that, while as a general rule married couples may file a joint return, section 51 (b) (3) of the Code prevents them from doing so when the husband and wife have different taxable years, which, it says, is the case here. Is this true?
Plaintiffs were married on June 6, 1948. Prior to their marriage the wife was employed, had an income, and filed income tax returns. These were made on a calendar year basis. She quit work in April 1948, in anticipation of her marriage in June following, since which time she has had no income. Her last separate tax return was for the calendar year 1948. She filed no return for the period January 1, 1949 to July 31, 1949, her last taxable year, as defined in section 48 of the Code, because she had no income during that time. The return for August 1, 1949 to July 31, 1950, was a joint return. For years previously the husband had [325]*325filed his returns on the basis of a fiscal year from and including August 1 to July 31 of the following year.
In such a situation, have the husband and wife different taxable years? If not, they are clearly entitled to file a joint return. The wife’s last taxable year ended on December 31,1948.
Section 48 of the Code defines a “taxable year” as “the calendar year, or the fiscal year * * * upon the basis of which the net income is computed under this Part,” which may be for 12 months or a fractional part thereof. The wife’s last taxable year ended on December 31,1948. Thereafter she had no taxable year, because she had no income upon which to compute taxes. A taxable year denotes the period for which taxes are levied. If none are levied, then there is no taxable year. Since April 1948 the wife had had no income upon which to compute taxes and, therefore, had no “taxable year” when the joint return was filed, or when the period covered by the return began.
If the wife has no taxable year, the husband and wife cannot have different taxable years and, hence, subsection (3) of 51 (b) does not apply.
So much for the technicalities. The result arrived at, we think, accords with the intent of Congress. Congress could not have intended subsection (3) to apply to a case where one of the spouses had no income. The inconvenience, if not the impossibility, of consolidating income where each spouse has income in taxable years ending on different days does not exist in a case where one spouse has no income.
It was not necessary for the wife to make application to change her basis for reporting her income from a calendar year basis to a fiscal year basis, as defendant contends, because she had no income to report.
Plaintiffs are entitled to recover, together with interest as provided by law, and judgment will be entered to that effect. The amount of the recovery will be determined pursuant to Eule 38 (c). If the parties desire to file a stipulation showing the amount due computed in accordance with this opinion, they may have thirty days in which to do so.
It is so ordered.
[326]*326Laramore, Judge; Madden, Judge; Littleton, Judge; and Jones, Chief Judge, concur.
FINDINGS OF FACT
The court, having considered the evidence, the stipulation of facts entered into between the parties, and the briefs and argument of counsel, makes findings of fact as follows:
1. The plaintiffs are husband and wife, who reside in Mississippi. Their address is Broadmoor Place, Gulfport, Mississippi.
2. For the fiscal years ending July 31, 1950 and July 31, 1951, the plaintiff Frank E. Bertucci, and his wife, the plaintiff Ardeth Bertucci, as husband and wife, duly filed with the Collector of Internal Bevenue, Jackson, Mississippi, Federal income tax returns.
3. The plaintiff, Frank E. Bertucci, and his wife, the plaintiff Ardeth Bertucci, were married on June 6, 1948. The plaintiffs have at all times since their said marriage resided in the State of Mississippi. Mississippi is not a community property state.
4. Prior to her marriage to the plaintiff, Frank E. Bertucci, the plaintiff Ardeth Bertucci was employed and earned taxable income. She terminated her employment in April 1948, and since her marriage in June 1948 to the plaintiff Frank E. Bertucci, she has not been employed. The plaintiff Ardeth Bertucci has not since April 1948 earned or received any taxable income from any source. For the years 1947 and 1948, the plaintiff Ardeth Bertucci duly filed a separate Federal income tax return on a calendar year basis, reporting thereon the taxable income earned prior to her marriage, as aforesaid. The plaintiff Ardeth Bertucci has not since the year 1948 filed separate Federal income tax returns.
5. The plaintiff Frank E. Bertucci is the principal member of a partnership engaged in the wholesale beer distributing business, known as the F. E. B. Distributing Company, Gulfport, Mississippi. Said partnership, for the periods here involved, and for many years prior thereto, kept its records and filed its Federal income tax returns on a fiscal year basis ending on July 31.
[327]*3276. The plaintiff Frank E. Bertucci, for a number of years prior to the fiscal year ending July 31,1950, had filed Federal income tax returns on a fiscal year basis ending on July 31. For the fiscal years ending July 31, 1950 and July 31, 1951, the plaintiff Frank E. Bertucci, and the plaintiff Ardeth Bertucci, as husband and wife, filed with the Collector of Internal Revenue, Jackson, Mississippi, joint Federal income tax returns, reporting as the only taxable income for said fiscal years the distributive share of the plaintiff Frank E. Bertucci of the income of the partnership F. E. B. Distributing Company for the fiscal year July 31, 1950 and July 31, 1951, respectively. The plaintiffs duly paid the Federal income taxes shown to be due on said returns.
7. The Commissioner of Internal Revenue, through the District Director of Internal Revenue, Jackson, Mississippi, took the position that under Section 51 (b) (3) of the Internal Revenue Code of 1939, as amended, the plaintiff Frank E. Bertucci was not permitted to file a joint Federal income tax return with his wife, the plaintiff Ardeth Bertucci, for the fiscal years ending July 31, 1950 and July 31, 1951. As a result, the District Director of Internal Revenue, Jackson, Mississippi, on February 4, 1954, determined a deficiency in principal of taxes in the amount of $2,432.57, plus interest thereon in the amount of $473.38 against the plaintiff Frank E. Bertucci, for the fiscal year ending July 31, 1950, and a deficiency in the principal amount of $4,548.47, plus interest thereon in the amount of $612.23 against the plaintiff, Frank E. Bertucci for the fiscal year ending July 31, 1951. After giving statutory notice on October 14,1953, the Commissioner timely assessed said deficiencies on February 4,1954, upon the Federal income tax returns. In assessing said deficiencies, the Commissioner treated said tax returns as individual returns of Frank E. Bertucci.
8. On January 11, 1954, the plaintiffs sent to the District Director of Internal Revenue, Jackson, Mississippi, a check for additional taxes in the principal amount of $6,981.04, which check represented additional taxes for the fiscal year ending July 31, 1950, in the amount of $2,432.57, and additional taxes for the fiscal year ending July 31, 1951, in the amount of $4,548.47. Said check in the total amount of [328]*328$6,981.04 was received by the District Director of Internal Eevenue, Jackson, Mississippi on January 12, 1954 and deposited for payment. The proceeds from said check were credited to the account of the District Director of Internal Eevenue, Jackson, Mississippi, titled “Uncertified Collections”. On February 11, 1954, the District Director of Internal Eevenue transferred from his account “Uncertified Collections”, the amount of $6,981.04 to the credit of the account of the plaintiffs which application was credited to the principal amount of additional taxes for the fiscal year July 31, 1950, in the amount of $2,432.57 and a principal amount of additional taxes for the fiscal year July 31, 1951, in the amount of $4,548.47. On February 13,1954, the plaintiffs sent to the District Director of Internal Eevenue, Jackson, Mississippi, a check for the interest on the additional taxes assessed against the plaintiffs in the amount of $1,085.61. On February 15, 1954, the said check in the amount of $1,085.61 was received by the District Director of Internal Eevenue and credited immediately to the plaintiffs, which application was credited to interest on the additional taxes assessed for the fiscal year ending July 31,1950 in the amount of $473.38 and interest on the additional taxes assessed for the fiscal year ending July 31,1951 in the amount of $612.23. A certificate from the District Director of Internal Eevenue, Jackson, Mississippi on Treasury Department Form 899, sets forth the amount of income taxes and the dates of payment thereof by the plaintiffs for the fiscal years ending July 31, 1950 and July 31,1951, respectively.
9. On March 8, 1954, the plaintiffs duly filed with the District Director of Internal Eevenue, Jackson, Mississippi, in proper form, claims for refund for the fiscal year ending July 31, 1950, in the amount of $2,432.57, plus interest paid thereon in the amount of $473.38, and for the fiscal year ending July 31,1951, in the amount of $4,548.47, plus interest paid thereon in the amount of $612.23.
10. On or about May 3, 1954, the plaintiffs received from the Commissioner of Internal Eevenue, through the District Director of Internal Eevenue, Jackson, Mississippi, in accordance with the provisions of Section 3772 (a) (2) of the Internal Eevenue Code, a notice that their claims for refund [329]*329for the fiscal years ending July 31, 1950 and July 31, 1951, had been disallowed in full.
11. On or about May 22,1953, the plaintiff Ardeth Bertucci filed with the Commissioner of Internal Revenue an application on Form 1128, requesting permission to file Federal income tax returns on a taxable year basis ending July 31, beginning with the fiscal year ending July 31, 1953.
12. At no time prior to May 22, 1953, did the plaintiff Ardeth Bertucci request or receive from the Commissioner of Internal Revenue authority to file Federal income tax returns on a fiscal year basis.
CONCLUSION OF LAW
Upon the foregoing findings of fact, which are made a part of the judgment herein, the court concludes as a matter of law that plaintiffs are entitled to recover, together with interest as provided by law, and judgment will be entered to that effect. The amount of recovery will be determined pursuant to Rule 38 (c) of the Rules of this court. If the parties desire to file a stipidation showing the amount due computed in accordance with this opinion, they may have thirty days in which to do so.
In accordance with the opinion of the court and on a memorandum report of the commissioner filed February 25, 1951, it was ordered March .6,1957, that judgment be entered for plaintiffs for $7,786.90, with interest as provided by law on $6,744.44 from January 12, 1954, and on $1,042.46 from February 15, 1954.