                       T.C. Memo. 2004-119



                     UNITED STATES TAX COURT



            ANTOINETTE J. DATO-NODURFT, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17983-02.             Filed May 17, 2004.



     Antoinette J. Dato-Nodurft, pro se.

     Monica J. Miller, for respondent.



                       MEMORANDUM OPINION


     WELLS, Chief Judge:    Respondent determined a deficiency of

$2,795.40 in petitioner’s Federal income tax for 2000.      The issue

to be decided is whether a certain payment to petitioner by her

former husband pursuant to a separation agreement constitutes

alimony that is includable in her income under section 71.     All

section references are to the Internal Revenue Code, as amended,
                                - 2 -

and all Rule references are to the Tax Court Rules of Practice

and Procedure.

                          Background

     The parties submitted the instant case, fully stipulated,

without trial, pursuant to Rule 122.        The parties’ stipulations

of fact are hereby incorporated by this reference and are found

as facts in the instant case.

     On December 26, 1993, petitioner married Christopher J.

Nodurft in Baton Rouge, Louisiana.      On April 17, 1998, petitioner

and Mr. Nodurft entered into a separation agreement (separation

agreement), in which petitioner and Mr. Nodurft agreed to live

separately, and Mr. Nodurft agreed to pay petitioner $1,505 per

month in spousal support, until they entered into a final decree

of divorce or dissolution.

     The separation agreement provides, in part:

                     SEPARATION OF THE PARTIES

          The parties may and shall at all time after the date of
     permanent separation live and continue to live separate and
     apart for the rest of their natural lives. Each shall be
     free from interference, authority and control, either direct
     or indirect, by the other as fully as if he or she is single
     and unmarried. The parties shall not molest each other or
     compel or endeavor to compel the other to cohabit or dwell
     with him or her by any legal or other proceedings for
     restitution of conjugal rights or otherwise. The separation
     took place with mutual consent. It may not be used as the
     basis for a charge of desertion or constructive desertion
     against either party.


                 *   *    *     *       *     *    *
                                - 3 -

                         SPOUSAL SUPPORT

          The parties understand and acknowledge that any
     obligation to provide spousal support is subject to
     modification at any time by order of a court of competent
     jurisdiction. Based upon this understanding, the parties
     agree that:

          The Husband shall pay to the Wife, as and for periodic
     spousal support of the Wife, the sum of $1,505.00 per month,
     until a final decree of divorce or dissolution is entered as
     between the parties. It is further agreed that said
     payments shall be made by allotment and shall be due and
     payable on the 1st day of each month. The Husband
     recognizes that the Wife will depend upon the timely payment
     of the support to be paid and agrees that, should any
     payment not be received within 60 days of its due date, and
     should the Wife retain counsel, that the Husband will pay
     any counsel fees incurred by the enforcement of the
     obligations under this Agreement.


               *    *    *      *       *   *   *

                             TAX MATTERS

          Annual Returns: The parties agree to file Joint
     federal and state income tax returns for the tax year 1997,
     and for any subsequent year during which they shall be
     married and entitled under the applicable laws and
     regulations to file joint returns, provided that such filing
     results in a lesser combined tax than would result from
     separate filing. Each party shall pay that proportionate
     share of the tax due as shall be attributable to his or her
     respective earnings or income and each shall indemnify and
     hold harmless the other against any liability for his or her
     own proportionate share of said tax. Any refund that is
     realized as a result of a joint return shall be divided
     equally between the parties.

     During 2000, petitioner received from Mr. Nodurft, pursuant

to the separation agreement, payment of $18,608 (payment).1   For


     1
      The separation agreement requires Mr. Nodurft to make 12
monthly payments of $1,505 to petitioner for a total yearly
                                                   (continued...)
                               - 4 -

2000, petitioner filed a separate Federal tax return, claiming

single rates.   During the year in issue, petitioner resided in

Birmingham, Alabama, and Mr. Nodurft resided in Arlington,

Virginia.

     On October 9, 2001, the Circuit Court of the City of

Alexandria, Virginia, entered a decree granting the divorce of

petitioner and Mr. Nodurft, which incorporated by reference the

April 17, 1998, separation agreement.   When she filed her

petition, petitioner resided in Longwood, Florida.

                              Discussion

     The issue in the instant case is whether the payment

petitioner received from Mr. Nodurft constitutes alimony that is

includable in her income under section 71.2

     Section 71 provides:

     SEC. 71.   ALIMONY AND SEPARATE MAINTENANCE PAYMENTS.

          (a) General Rule.-–Gross income includes amounts
     received as alimony or separate maintenance payments.

          (b) Alimony or Separate Maintenance Payments Defined.–-
     For purposes of this section–




     1
      (...continued)
payment of $18,060. The payment in issue is $18,608, and the
parties have not provided an explanation for this discrepancy.
     2
      Petitioner does not argue that sec. 7491 applies in the
instant case. Moreover, the resolution of the instant case does
not depend upon which party has the burden of proof. Rather, the
instant case is decided upon the basis of the fully stipulated
facts and the documents contained in the record.
                               - 5 -

              (1) In general.–-The term “alimony or separate
          maintenance payment” means any payment in cash if–

                  (A) such payment is received by (or on
               behalf of) a spouse under a divorce or
               separation instrument,

                  (B) the divorce or separation instrument
               does not designate such payment as a payment
               which is not includable in gross income under
               this section and not allowable as a deduction
               under section 215,

                  (C) in the case of an individual legally
               separated from his spouse under a decree of divorce
               or of separate maintenance, the payee spouse and
               the payor spouse are not members of the same
               household at the time such payment is made, and

                  (D) there is no liability to make any such
               payment for any period after the death of the payee
               spouse and there is no liability to make any
               payment (in cash or property) as a substitute for
               such payments after the death of the payee spouse.

              (2) Divorce or separation instrument.-–The term
          “divorce or separation instrument” means–

                   (A) a decree of divorce or separate maintenance
                or a written instrument incident to such a decree,

                   (B) a written separation agreement, or

                   (C) a decree (not described in subparagraph
                (A)) requiring a spouse to make payments for the
                support or maintenance of the other spouse.

     Petitioner contends that, because she and her former husband

were not legally separated during 2000, the payment she received

from her former husband is not alimony.   We do not agree.   The

relevant inquiry is whether the payment was made pursuant to a

written separation agreement within the meaning of section

71(b)(2)(B).
                               - 6 -

      Petitioner contends that the separation agreement she and

Mr. Nodurft executed was not legally binding, and that payments

made pursuant to the separation agreement should not be

considered alimony.   Petitioner asserts in the petition that

“Petitioner and Former Husband were advised in the office of the

Judge Advocate of Kaneohe Bay, Hawaii, USMCB, said ‘separation’

documents were not legally binding as they are not issued from a

civilian court of law.”

      Petitioner’s contention fails to appreciate that a payment

made pursuant to a written separation agreement may be alimony

under section 71 even though the agreement may not be an

enforceable instrument under State law.    See sec. 1.71-

1(b)(2)(i), Income Tax Regs.; see also Richardson v.

Commissioner, 125 F.3d 551 (7th Cir. 1997), affg. T.C. Memo.

1995-554; Benham v. Commissioner, T.C. Memo. 2000-165.      The term

“written separation agreement” is not defined by the Code.     See

Jacklin v. Commissioner, 79 T.C. 340, 346 (1982); Benham v.

Commissioner, supra; Leventhal v. Commissioner, T.C. Memo. 2000-

92.   A written separation agreement is a clear, written statement

of the terms of support for separated parties.    See Bogard v.

Commissioner, 59 T.C. 97, 101 (1972).     A separation agreement

requires mutual assent of the parties.     Kronish v. Commissioner,

90 T.C. 684, 693 (1988); see also Benham v. Commissioner, supra.
                               - 7 -

     Petitioner filed a separate return for 2000, claiming single

rates, and petitioner and Mr. Nodurft resided in separate States.

Petitioner and Mr. Nodurft signed the separation agreement, and

petitioner received the payment from Mr. Nodurft pursuant to the

separation agreement.   The separation agreement required Mr.

Nodurft to pay petitioner $1,505 per month “until a final decree

of divorce or dissolution is entered as between the parties.”

According to its own terms, the separation agreement was entered

into by petitioner and Mr. Nodurft to effect a permanent

separation.   The separation agreement explicitly provides terms

of support that are sufficient for it to be considered a written

separation agreement under section 71.   See Bogard v.

Commissioner, supra at 101-102; Benham v. Commissioner, supra.

Petitioner’s contention that the separation agreement is not

legally enforceable does not change that result.   See Richardson

v. Commissioner, supra; Benham v. Commissioner, supra.

     We have stated that a separation instrument that provides a

“clear, explicit and express direction” that a payment made

pursuant to that separation instrument is not includable in

income under section 71 and not allowable as a deduction under

section 215 will qualify the payment for exclusion from the

recipient’s income.   See Richardson v. Commissioner, supra;

Estate of Goldman v. Commissioner, 112 T.C. 317, 323 (1999),

affd. without published opinion sub nom. Schutter v.
                                 - 8 -

Commissioner, 242 F.3d 390 (10th Cir. 2000); Medlin v.

Commissioner, T.C. Memo. 1998-378; see also sec. 1.71-1T(b), Q&A-

8, Temporary Income Tax Regs., 49 Fed. Reg. 34455 (Aug. 31,

1984).   We conclude that the separation agreement between

petitioner and Mr. Nodurft fails to designate that the payments

to petitioner are not to be deductible by him under section 215

or includable in her gross income under section 71.       The

provisions of the separation agreement entitled “Tax Matters”

require petitioner and Mr. Nodurft to file a joint return if

doing so would result in a lower tax liability than if they each

filed a separate return.   The agreement does not require that the

payments by him to her be treated as other than alimony.

     On the basis of the foregoing, we conclude that the payment

petitioner received from her former husband is alimony and is

includable in her income pursuant to section 71.

     To reflect the foregoing,


                                         Decision will be entered for

                                 respondent.
