DocketNumber: Docket No. 4331-68
Citation Numbers: 54 T.C. 1599, 1970 U.S. Tax Ct. LEXIS 84
Judges: Featherston
Filed Date: 8/6/1970
Status: Precedential
Modified Date: 1/13/2023
*84
Pursuant to a decree of separation providing in part for payments by the petitioner to his wife "for support and maintenance of the [wife] and the three children," petitioner paid her an amount in excess of one-half of her support and that of the children.
*1600 Respondent determined a deficiency in petitioner's Federal income tax for 1965 in the amount of $ 108.98. The only issue is whether the sums totaling $ 2,063.45 paid by Lory Buccola to his separated wife, Josephine Buccola, in 1965 constituted alimony payments and were thus includable in Josephine's gross income under
*87 FINDINGS OF FACT
Lory Buccola (hereinafter referred to as Lory or petitioner) resided in Falconer, N.Y., at the time his petition was filed. He filed a Federal income tax return for 1965 with the district director of internal revenue, Buffalo, N.Y.
Briefly summarized, the facts, most of which were stipulated, are as follows. On June 30, 1951, Lory married Josephine Destro (hereinafter Josephine) at Jamestown, N.Y. This marriage yielded three children: Saranne, born April 4, 1953; Joseph, born August 1, 1954; and Lory, Jr., born February 1, 1959. In 1962 Josephine commenced an action for an order of separation from Lory's bed and board in the Supreme Court for the County of Chautauqua, N.Y. On March 8, 1962, the court decreed the separation of Lory and Josephine, and the order provided in pertinent part as follows:
Ordered, Adjudged, and Decreed, that the defendant [Lory Buccola] shall pay the plaintiff [Josephine Buccola] the sum of Forty Dollars ($ 40.00) per week beginning with the 16th day of February, 1962,
During 1965, pursuant to this order, Lory made payments to Josephine which totaled $ 2,063.45. These payments constituted a sum in excess of half of the support of Josephine and the three children during that year. In his 1965 Federal tax return Lory claimed exemption deductions for Josephine and each of the three children. In the notice of deficiency, respondent determined that Lory's payments to Josephine were "alimony," allowed an alimony deduction in the amount of $ 2,063.45, and disallowed the exemption deductions claimed for Josephine and the three children.
*1601 OPINION
Petitioner paid nothing toward the support of his wife and children except the payments under the court decree. Yet he contends that, since he made a cash outlay in excess of half their total support, he is entitled to dependency deductions for them. In essence, his argument is that
This language leaves no room for doubt. *90 The agreement must expressly specify or "fix" a sum certain or percentage of the payment for child support before any of the payment is excluded from the wife's income. The statutory requirement is strict and carefully worded. It does not say that "a sufficiently clear purpose" on the part of the parties is sufficient to shift the tax. It says that the "written instrument" must "fix" that "portion of the payment" which is to go to the support of the children. Otherwise, the wife must pay the tax on the whole payment. * * *
See also
In the present case, the separation decree only provides for payments to be made "for the support and maintenance of [Josephine] and the three children." There is no mention of the manner in which the money is to be used, and, as in
This conclusion that Lory's payments under the decree of separation are includable in Josephine's gross income is decisive of his claim for dependency deductions for the children under
*92 Nor is petitioner entitled to the claimed exemption for Josephine. She had gross income within the meaning of
1. All section references are to the Internal Revenue Code of 1954, as in effect during the tax years in issue, unless otherwise noted.↩
2.
(a) General Definition. -- For purposes of this subtitle, the term "dependent" means any of the following individuals over half of whose support, for the calendar year in which the taxable year of the taxpayer begins, was received from the taxpayer * * *: (1) A son or daughter of the taxpayer, * * *↩
3.
(b) Taxpayer and Spouse. -- An exemption of $ 600 for the taxpayer; and an additional exemption of $ 600 for the spouse of the taxpayer if a separate return is made by the taxpayer, and if the spouse, for the calendar year in which the taxable year of the taxpayer begins, has no gross income and is not the dependent of another taxpayer.↩