                   T.C. Summary Opinion 2010-15



                       UNITED STATES TAX COURT



         KELLY A. SMITH f.k.a. KELLY A. WAITE, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 3356-09S.              Filed February 18, 2010.



     Nathan T. Chase, for petitioner.

     Lisa DiCerbo, for respondent.



     ARMEN, Special Trial Judge:     This case was heard pursuant to

the provisions of section 7463 of the Internal Revenue Code in

effect when the petition was filed.1    Pursuant to section

7463(b), the decision to be entered is not reviewable by any




     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for the
year in issue, and all Rule references are to the Tax Court Rules
of Practice and Procedure.
                                - 2 -

other court, and this opinion shall not be treated as precedent

for any other case.

     Respondent determined a deficiency of $3,920 in petitioner’s

Federal income tax for 2005.    The sole issue for decision is

whether payments petitioner received from her ex-husband in 2005

were “alimony” under the Internal Revenue Code.     Because we hold

that the payments were alimony, we sustain respondent’s

determination.

                             Background

     This case was submitted fully stipulated under Rule 122, and

the stipulated facts are so found.      The stipulation of facts and

the attached exhibits are incorporated herein by this reference.

Petitioner resided in the Commonwealth of Pennsylvania when the

petition was filed.

     Petitioner was formerly married to Darren Waite, and

together they had one child.

     A divorce action was commenced by petitioner in the Court of

Common Pleas of Allegheny County, Pennsylvania, and in a Final

Order dated April 13, 2004, Mr. Waite was ordered to pay to

petitioner $1,312 per month:    “$1,287 for current support and $25

for arrears”.    The order describes the payment as “support for

[petitioner] and one child.”    The order further states that the

“order is based on guideline [sic] per consent of the parties.”
                                 - 3 -

     Petitioner and Mr. Waite were divorced on August 5, 2005.

     In a subsequent Final Order dated March 16, 2006, the State

court ordered Mr. Waite to pay to petitioner $1,005 per month.

The order describes the payment as “support for the child * * *

of $700.00 per month and APL [alimony pendente lite] * * * of

$300.00 per month.     Arrears to be paid at a rate of $5.00 per

month.”2    The order further states:    “This order shall be

considered unallocated until such time [petitioner is] no longer

entitled to receive APL/alimony.”       The effective date of the

order was November 18, 2005.

     Both the April 13, 2004 order and the March 16, 2006 order

state:     “All charging orders for spousal support and alimony

pendente lite, including unallocated orders for child and spousal

support or child support and alimony pendente lite, shall

terminate upon death of the payee.”

     A third Order dated March 28, 2006, states:       “The alimony

pendente lite portion of the March 16, 2006 support order shall

terminate as of March 31, 2006, with the child support portion to

continue at $700 per month.”

     During 2005 petitioner received payments from Mr. Waite

totaling $15,744.     Petitioner did not report receipt of any

alimony on her 2005 Federal income tax return.


     2
        Pendente lite is a Latin term meaning “while the action
is pending”. Black’s Law Dictionary 1248 (9th ed. 2009).
                                  - 4 -

                            Discussion

     Section 71(a) provides for the inclusion in income of any

alimony received by an individual during his or her taxable year.

Section 71(b)(1) defines the term “alimony” as 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.

The term “divorce or separation instrument” includes a court

decree requiring a spouse to make support payments to the other

spouse.   See sec. 71(b)(2)(C).

     Section 71(c)(1) provides that the general inclusion rule

under 71(a) “shall not apply to that part of any payment which

the terms of the divorce or separation instrument fix (in terms

of an amount of money or a part of the payment) as a sum which is

payable for the support of children of the payor spouse.”

Amounts payable under a divorce decree will not be treated as
                               - 5 -

child support for purposes of section 71(c) unless specifically

designated as such in the document.    See, e.g., Berry v.

Commissioner, T.C. Memo. 2005-91.

     The parties dispute whether some portion of the payments

petitioner received from Mr. Waite in 2005 was in fact child

support and not alimony.   Petitioner argues that the April 13,

2004 order sufficiently fixed the amount of child support or, in

the alternative, that the March 16, 2006 order should

retroactively apply to some or all of the 2005 payments.

     In support of petitioner’s argument that the April 13, 2004

order sufficiently fixed the amount of child support, petitioner

relies upon the statement in the order that the parties consent

to the “guideline”.   This is a reference to the support

guidelines adopted under the Pennsylvania Rules of Civil

Procedure (Pa. R. Civ. P.) as mandated by Federal law.     See

Lawton v. Commissioner, T.C. Memo. 1999-243.   Petitioner argues

that all awards of support for a spouse, a child, or both, must

conform to the guidelines.

     In domestic relations proceedings in the Commonwealth of

Pennsylvania, under Pa. R. Civ. P. 1910.16, the court on its own

motion, or upon the motion of either party, may make an

unallocated award in favor of the spouse and one or more

children, or the court may state separately the amount of support

allocable to the spouse and to each child.   To determine the
                                - 6 -

total amount of support required for a child, the support

guidelines use the net income of both parents and a formula or

charts derived from the formula.    Pa. R. Civ. P. 1910.16-1(a),

1910.16-3, 1910.16-4.    If the court determines “that there is an

obligation to pay support, there shall be a rebuttable

presumption that the amount of the award determined from the

guidelines is the correct amount of support to be awarded.”      Pa.

R. Civ. P. 1910.16-1(d).

       Assuming, arguendo, that a simple reference to the grid

would produce an accurate figure for what portion of the amounts

received was for child support, petitioner has not satisfied the

requirements of section 71(c)(1).    The amount of child support

must be fixed by the terms of the instrument.    See sec. 71(c)(1);

Commissioner v. Lester, 366 U.S. 299, 303 (1961); Lawton v.

Commissioner, supra; Raymond v. Commissioner, T.C. Memo. 1997-

219.    The language in the April 13, 2004 order of support does

not fix any specific amount for the payment of child support;

instead, the order makes an “unallocated” award of support for

petitioner and one child.    By making an unallocated award of

support, in view of the language of Pa. R. Civ. P. 1910.16-4(f),

it appears that the Court of Common Pleas intended that the full

amount of the monthly payments would be taxable to petitioner and

deductible by Mr. Waite.    See Mannina v. Commissioner, T.C. Memo.

1985-565.
                               - 7 -

     We turn now to petitioner’s second argument, that the March

16, 2006 order should retroactively apply to some or all of the

2005 payments.   While property interests of divorcing parties are

determined by State law, Federal law governs the Federal income

tax treatment of that property.   Zinsmeister v. Commissioner,

T.C. Memo. 2000-364 (citing Hoover v. Commissioner, 102 F.3d 842,

845 (6th Cir. 1996), affg. T.C. Memo. 1995-183), affd. 21 Fed.

Appx. 529 (8th Cir. 2001).   State court adjudications

retroactively changing the rights of parties are generally

disregarded for Federal income tax purposes.   Ianniello v.

Commissioner, 98 T.C. 165, 175 n.5 (1992); see also Ali v.

Commissioner, T.C. Memo. 2004-284 (retroactive imposition of

support by a State court does not have retroactive effect for

Federal tax purposes).   Consequently, we do not ascribe

conclusive weight to the retroactive application of the March 16,

2006 order.3   Whether the payments petitioner received from Mr.

Waite are considered alimony or child support for Federal tax

purposes will be determined under applicable Federal law.




     3
        We note that an exception to the general rule exists when
a nunc pro tunc order retroactively corrects an order which
failed to reflect the true intention of the court at the time it
was rendered. Gordon v. Commissioner, 70 T.C. 525, 530 (1978);
Johnson v. Commissioner, 45 T.C. 530, 532 (1966). There is no
persuasive evidence that the Mar. 16, 2006 order corrected an
order that failed to reflect the true intention of the court at
the time it was rendered.
                               - 8 -

     Even if the terms of the March 16, 2006 order are

considered, the delineation between child support and alimony

pendente lite would only apply to payments received in November

and December 2005 as the effective date of the order was November

18, 2005.   That being said, a well-established principle of

contract law is that a writing is interpreted as a whole.    2

Restatement, Contracts 2d, sec. 202 (1997).   “An interpretation

that gives a reasonable meaning to all parts of the contract will

be preferred to one that leaves portions of the contract

meaningless.”   Rink v. Commissioner, 47 F.3d 168, 171 (6th Cir.

1995), affg. 100 T.C. 319 (1993); 2 Restatement, supra, sec. 202.

The March 16, 2006 order indicates that of the total monthly

payment, $700 is child support and $300 is alimony pendent lite.

However, the order further states that the monthly payments will

be “considered unallocated until such time [petitioner is] no

longer entitled to receive APL/alimony.”   In light of the

entirety of the order, and giving meaning to all parts of the

order, the payments received by petitioner in November and

December 2005 are unallocated and, therefore, alimony.

     The relief that petitioner, in effect, seeks in this Court

(allocation of unallocated support payments to child support)

could have been sought directly by petitioner, by motion in the

Court of Common Pleas.   Pa. R. Civ. P. 1910.16; see also Ambrose
                               - 9 -

v. Commissioner, T.C. Memo. 1996-128.     What she failed to do in

that court, she may not do in the Tax Court.

     For the reasons discussed above, we sustain respondent’s

determination that the payments received by petitioner from her

ex-husband in 2005 were alimony and not child support under

section 71, and accordingly,


                                            Decision will be entered

                                       for respondent.
