Is An Unborn Child A Person

Wed Jan 11 11:06:34 PST 2006

Paul's point reaches further. Quoting from my TM 503-2: "A child who
lives momentarily after birth is treated as a child for dependency
exemption purposes if state or local law recognizes the birth and there
is official documentation of the birth as a live birth.[fn: Rev. Rul.
73-156, 1973-1 C.B. 58, clarified, Rev. Rul. 85-118, 1985-2 C.B. 59.] No
dependency exemption is allowed for a stillborn child. [fn: Special
Ruling, 4 Fed. Tax Serv. (P-H) Para.76,100 (1/24/45), cited in Cassman
v. U.S., 31 Fed.Cl. 121 (1994) (live birth required for dependency
exemption). ]" 

The issue was addressed not only in Cassman, but in Wilson v.
Commissioner, 41 B.T.A. 456 (1940). The opinion in Cassman is well worth
reading for anyone who wants to get into some detailed analysis. The
opinion notes that the technical term in the tax statute is "individual"
and that the requirement that the individual be a citizen or national of
the U.S. incorporated the definition from the immigration statutes,
which requires a person to have been born in order to be a citizen or
national. It also concluded that the unborn child could not be a
resident of any place. The court also distinguished a seemingly
inconsistent case allowing a gift tax exclusion for a transfer on behalf
of an unborn child who was in utero at the time of the transfer.

But the Court did not define person as such, other than in what could
be called dictum. There was no need to define person as such. Its
reliance on the administrative complexities arising from a claim for a
dependency exemption in the year before the child is born assumed
continuing validity of IRS rulings barring the exemption for stillborn
children and instances of miscarriage and abortion. 

I doubt, though, that the proceedings in Arizona will be this complex,
at least not until it is appealed out of the administrative process.

Jim Maule

>>> Paul Finkelman <paul-finkelman at utulsa.edu> 1/11/2006 1:34:43 PM
>>>
I would say when IRS allows me to retroactively take the exemption for

my kids in the year they were in the womb, then maybe we could consider

this argument.  By the way, if this is true, then I suppose a child 
conceived in the US while the parents are here on vacation (or 
illegally?) would be a citizen under the 14th Amendment.

 Paul Finkelman

Rick Duncan wrote:

> For purposes of a carpool-only lane? This is the question that has 
> arisen in this interesting Arizona case 
>
<http://www.azcentral.com/community/ahwatukee/articles/0110ar-pregnantZ14.html>.

> Here is an excerpt:
>  
>  
> A pregnant Ahwatukee Foothills resident ticketed for driving in a 
> carpool lane is scheduled to appear in court today to argue that her

> unborn child counted as a passenger.
>
> Candace Dickinson, 23, hopes to overturn her penalty and prove her 
> point that even though her child was still in the womb while she was

> driving on Interstate 10 on Nov. 8 in Ahwatukee Foothills, it still 
> counted as a second person.
>  
> Since then, Dickinson gave birth to her baby - a boy.
>  
> Frank Valenzuela, spokesman for the Arizona Department of Public 
> Safety, said a vehicle can't occupy the high-occupancy vehicle lane 
> unless two or more pe! ople are in it.
>
> The statute doesn't define what a "person" is.
>
> "If a (pregnant) mother goes to a movie theater, she's not going to 
> pay for her child," Valenzuela said.
>  
>  
> Hmmm. Ticketed Nov. 8 and the child was born soon after. It might
have 
> been a viable passenger. No?
>  
> Moreover, to the extent that the Court has held in Casey that it is
up 
> to each pregnant woman to decide the mystery of life, then this 
> mother's choice to recognize the personhood of her baby should settle

> the question.
>  
> I wonder what Alito thinks about this?
>  
> Cheeres, Rick Duncan
>
>
>
>
>
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>  
>
> "When the Round Table is broken every m! an must follow either
Galahad 
> or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
>
> "I will not be pushed, filed, stamped, indexed, briefed, debriefed,
or 
> numbered." --The Prisoner
>
>
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-- 
Paul Finkelman
Chapman Distinguished Professor of Law
University of Tulsa College of Law
3120 East 4th Place
Tulsa, OK   74104-3189

918-631-3706 (office)
918-631-2194 (fax)

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