decided: May 27, 1958.
MURIEL DODGE NEEMAN (FORMERLY MURIEL DODGE), PETITIONER-APPELLANT,
COMMISSIONER OF INTERNAL REVENUE, RESPONDENT-APPELLEE.
Cert. Den. 358 U.S. 841
Before WATERMAN and MOORE, Circuit Judges, and GALSTON, District Judge.
The Tax Court decision is affirmed on the opinion below, 26 T.C. 864.*fn1
The Supreme Court, in Heiner v. Donnan, 1932, 285 U.S. 312, 52 S. Ct. 358, 76 L. Ed. 772, has ruled that a taxing statute to be unconstitutional under the Fifth Amendment must be so arbitrary as to amount to a confiscation, or a clear and a gross inequality or injustice. We do not agree with petitioner that under the circumstances of this case the application of section 22(k) is so arbitrary, capricious, and unreasonable in that it violates the due process clause of the Constitution. We likewise hold against petitioner on this point.
Finally, petitioner contends that although the parties have stipulated that the specific source of funds used by Dodge to pay the amounts of alimony to petitioner "is unknown" we should nevertheless find that the alimony was paid from Dodge's tax-exempt income and that the payments retained such tax-exempt status in petitioner's hands and should, therefore, be excluded from her gross income under section 22(b) (4) of the Internal Revenue Code of 1939. There are several reasons why this contention must fail. We need only men