DocketNumber: Docket No. 78849
Citation Numbers: 35 T.C. 306, 1960 U.S. Tax Ct. LEXIS 19
Judges: Turner
Filed Date: 11/22/1960
Status: Precedential
Modified Date: 1/13/2023
*19
On March 8, 1957, petitioner, who was pregnant, instituted an action against her husband, John, for separation from bed and board. On March 19, 1957, the court issued an order requiring the husband to pay petitioner $ 100 per week for support, plus doctors' bills and maternity expenses. Petitioner moved to another residence, and on August 8, 1957, gave birth to a son, the only child that was born to the marriage. On November 4, 1957, an amending court order was issued, to the effect that beginning the next day John should pay $ 75 per week for the support and maintenance of petitioner and infant son until further order of the court. During 1957 petitioner received an aggregate amount of $ 3,900 from John. John filed an individual return for 1957, but no return was filed by petitioner. In October 1958, at a conference with a representative of respondent in regard to a proposed deficiency against her, petitioner was told that an "amended" joint return could be filed by her and John which would absolve her from the tax and clear the record. On November 28, 1958, respondent mailed to petitioner a notice of deficiency, in which he*20 included in her income the entire amount of $ 3,900 received by her from John under the two court orders. On February 18, 1959, petitioner filed her petition herein. On September 2, 1959, she and John filed an "amended" joint return for 1957.
*306 The respondent determined a deficiency in income tax against the petitioner for the taxable year 1957 in the amount of $ 473. The only question presented is whether support money received by petitioner from her husband during 1957 should be included in her gross income for that year.
FINDINGS OF FACT.
Some of the facts have been stipulated and are found as stipulated.
Petitioner is an individual, and a resident of Indianapolis, Indiana. She was married to John S. Kirby, Jr., hereafter referred to as John, on March 3, 1956, and they were husband and wife during 1957. Petitioner filed no income tax return for 1957. John filed an individual return for that year with the district director of internal revenue for Indiana.
*307 On March 8, 1957, petitioner instituted, in the Marion County Superior Court, an action against John for separation *23 from bed and board. At the time of the hearing on the said action petitioner was pregnant. She and John lived in a house which John had built prior to their marriage and from which he conducted a business. At the hearing, petitioner was permitted to choose one of two alternatives, namely, $ 50 per week for support, if she continued to live in the home, and $ 100 per week, if she provided her own lodging.
She elected to provide her own lodging, and on March 19, 1957, the Marion County Superior Court issued the following order:
Comes now the plaintiff in person and by counsel and the defendant in person and the court being duly advised orders the defendant to pay $ 100.00 per week support beginning March 19, 1957, plus doctor bills and maternity expenses. Restraining order continued in full force, defendant to live and maintain home expenses, defendant to pay $ 750.00 for use and benefit of plaintiff's attorney and like sum for defendant's attorney within ten days.
On the same date, March 19, 1957, petitioner and John did in fact separate. She moved to a residence in another part of Indianapolis, which she had secured at a rental of $ 125 per month. Having no furniture, she paid*24 for the furnishing of the home out of the support money she received.
On August 8, 1957, petitioner gave birth to a son, Christopher Charles Kirby, the only child born of the marriage between petitioner and John. In addition to the rent, petitioner paid for food, telephone, electricity, fuel oil, laundry, drugs, doctors, and the operation of a car. She also purchased for Christopher items such as crib and mattress, bassinet, baby buggy, baby bath, scales, stroller buggy, car seat, playpen, clothes and blanket, chest of drawers, and a chair. 1
On November 4, 1957, following a change in venue, the Circuit Court for Hendricks County, Indiana, entered the following order modifying the original order of the Marion County Superior Court:
Come now the parties by counsel and the court having *25 heard the evidence on defendant's petition to modify the decree herein for support and suit money pendente lite and for visitation privileges with the parties' infant son, Christopher Charles and having had its decision under advisement and being now duly advised finds and it is ordered that said support order be modified in this, that pending litigation herein the defendant shall pay for the support and maintenance of plaintiff and said infant son the sum of $ 75.00 per week beginning on November 5, 1957, and a like amount each week thereafter until further order of this court. That defendant have visitation privileges with said infant child at the home of plaintiff for a period of one hour from 5 o'clock P.M. until 6 o'clock P.M. on the second and fourth Fridays of each month, beginning on November 8, 1957, and in all other respects the former order for *308 support, suit money, and maintenance pendente lite shall remain in full force and effect, all until further order of this court.
Petitioner was a schoolteacher, but did not work in 1957. The payments received by her in that year pursuant to the above court orders amounted in the aggregate to $ 3,900. She did not receive*26 any income from any other source.
A decree of final divorce was issued on May 7, 1958.
On October 9, 1958, petitioner had a conference with a representative of the Internal Revenue Service in Indianapolis in regard to a proposed deficiency in income tax for 1957. She learned that John had filed an individual return and not a joint return. She was advised by the representative that if she and John would file a joint return for 1957, she would be absolved from the tax and the record would be cleared. 2
When she asked John to file a joint return with her, he agreed to do so if she would grant him partial custody of their son, a condition she would not consider.
The notice of deficiency was mailed to petitioner on November 28, 1958, and on February 18, 1959, she filed her petition*27 herein.
Thereafter, on August 28, 1959, she and John did sign a joint return for 1957, which return was filed on September 2, 1959, with the district director of internal revenue for Indiana. The return, after showing itemized deductions and three exemptions had been deducted from the adjusted gross income, indicated that no tax was due.
In the determination of deficiency, the $ 3,900 received by petitioner in 1957 from John, pursuant to the court orders, was determined to be her income, within the meaning of
OPINION.
Petitioner contends that none of the support money is taxable to her (1) because she and John were still husband and wife during the taxable year 1957, and (2) because she and John subsequently filed an amended joint return for 1957, which absolved her from tax.
Respondent, relying on
*309
*29 In support of her contention, petitioner cites
It must be noted parenthetically that we are not concerned here with the impact of the enlarged alimony provisions,
In the instant case, petitioner, in 1957, instituted a separation from bed and board action, and after a hearing, *30 the court issued an order on March 19, 1957, requiring the husband to pay petitioner weekly support.
(3)
While section 22(k), the applicable statute in the
Your committee has also added subsection (a)(3) to provide for the inclusion in the wife's income of periodic payments (whether or not made at regular intervals) received under a Court decree (entered after the enactment of the bill) which requires the husband to make the payments for the support or maintenance of the wife. Subsection (a)(3) is applicable only if the wife is separated from her husband, but such separation need not be under a decree nor need the payments be made to enforce a separation agreement. This paragraph also is not applicable if the husband and wife made a single return jointly.
It is apparent that
The same is true, we think, with respect to the amending order of November 4, 1957, which reduced the support payments to $ 75 per week, at which time Christopher Charles had been born to the marriage, and the order specified that the weekly payments should be made "for the support and maintenance of plaintiff and said infant son."
Petitioner argues that after the birth of the child a portion of the $ 3,900 received by her was expended on the child and that that portion is not taxable to her. There is nothing in the first order to permit an allocation of the payments, as there is no mention of a child. It was not until August 8, 1957, that the son was born. The amending order did direct that John pay $ 75 per week for the support and maintenance of petitioner and her son, but since the order did not fix "in terms" an amount or a part of the payment as being payable for the support of the child, as
*311 Petitioner's final argument is that she and John did file a joint return, which, pursuant to the representations of the revenue agent and under the statute, absolved her from the tax. By its last sentence,
Under
Petitioner's position that a contract between her and the Government to the effect that an "amended" joint return would be accepted, when filed, and she would thereby be absolved of the tax was entered into at the conference with the revenue agent, is not well taken. From her testimony, it would appear that the revenue agent did make a suggestion to her as to what could have been done at that time. Under the statute, an effective joint return may not be filed after a notice of deficiency has been mailed to either spouse and a petition with the Tax Court has been filed within the time prescribed therefor, and under no circumstances could a revenue agent waive the statutory conditions under which an effective joint return could be filed.
Even though petitioner and John did file a joint return within the period of the statute of limitations, the filing thereof was after the petition herein had been filed, and it did*35 not constitute an effective return within the meaning of
1. The amounts so expended as shown by petitioner's testimony amounted in the aggregate to $ 1,646.85. In some instances the amounts were stated as estimates. Other amounts appeared to be as shown by bills, receipts, or the like.↩
2. Whether this statement by the agent was based on the proposition that by filing a joint return she would not, under the statute, have separate taxable income or on the proposition that such a joint return would show no tax, does not appear.↩
3.
(a) General Rule. -- * * * * (3) Decree for support. -- If a wife is separated from her husband, the wife's gross income includes periodic payments (whether or not made at regular intervals) received by her after the date of the enactment of this title from her husband under a decree entered after March 1, 1954, requiring the husband to make the payments for her support or maintenance. This paragraph shall not apply if the husband and wife make a single return jointly.
(b) Payments to Support Minor Children. -- Subsection (a) shall not apply to that part of any payment which the terms of the decree, instrument, or agreement fix, in terms of an amount of money or a part of the payment, as a sum which is payable for the support of minor children of the husband. For purposes of the preceding sentence, if any payment is less than the amount specified in the decree, instrument, or agreement, then so much of such payment as does not exceed the sum payable for support shall be considered a payment for such support.↩