                  T.C. Summary Opinion 2004-21



                     UNITED STATES TAX COURT



         WILLIAM ROBERTSON MCSKIMMING III, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17953-02S.           Filed March 5, 2004.


     William Robertson McSkimming III, pro se.

     Warren P. Simonsen, for respondent.



     PANUTHOS, Chief Special Trial Judge:   This case was heard

pursuant to the provisions of section 7463 of the Internal

Revenue Code in effect at the time the petition was filed.   The

decision to be entered is not reviewable by any other court, and

this opinion should not be cited as authority.   Unless otherwise

indicated, 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 -

     Respondent determined a deficiency in Federal income tax of

$6,448 for the 2000 taxable year.    The issue for decision is

whether unallocated support payments constitute “alimony or

separate maintenance payments” that petitioner may deduct under

section 215.

Background

     Some of the facts have been stipulated and are so found.

The stipulated facts and the related exhibits are incorporated

herein by this reference.    At the time of filing the petition,

petitioner resided in Edgewater, Maryland.

     Petitioner was previously married to Sandra L. McSkimming

(Ms. McSkimming).    They have three children:   (1) Brian

McSkimming (Brian), born October 28, 1978; (2) Daniel McSkimming

(Daniel), born June 14, 1981; and (3) Megan McSkimming, born May

23, 1984.

     On May 27, 1993, Ms. McSkimming filed an action for divorce

in the Supreme Court of the State of New York, County of Erie

(New York court).    Petitioner executed a stipulation on March 18,

1994, entering into a pendente lite arrangement in which he would

pay Ms. McSkimming the sum of $400 per week “as and for

unallocated family support, commencing immediately.”     The

stipulation noted:

     That in consideration for the above referenced family
     support, the Plaintiff, SANDRA L. McSKIMMING, shall be
     responsible to pay for mortgage payments on the marital
     residence, homeowner’s insurance at the marital
                                 - 3 -

     residence, gas/oil, electric, telephone, water/sewer,
     cable, food, and piano and dancing lessons pending the
     trial and determination of this action.

     A judgment of divorce was filed with the New York court on

January 23, 1996.

     Certain unresolved financial issues were addressed during a

proceeding on June 28, 1996, before an Official Matrimonial

Referee of the New York court.    Ms. McSkimming and petitioner

were both represented by counsel, who entered into the following

oral stipulation on behalf of their clients:

          [Ms. McSkimming’s attorney]: With respect to
     maintenance, Mr. McSkimming agrees to pay to Mrs.
     McSkimming the sum of fifteen thousand dollars per year
     for five years, and then an additional ten thousand
     dollars a year for the next three years for a total of
     eight years. It’s been agreed that if Mrs. McSkimming
     either remarries or co-habits with someone who is not a
     relative, which she is doing now, she will still be
     entitled to one-half of the balance of the maintenance
     due at the time of her remarriage.

           *        *    *        *      *      *      *

          [Ms. McSkimming’s attorney]: With respect to the
     issue of -- the maintenance shall be paid on a weekly
     basis. With respect to the issue of child support --

          [Petitioner’s attorney]: Excuse me. Mr.
     McSkimming will continue to pay the four hundred
     dollars per week unallocated maintenance and support
     until Mr. Cinelli completes his report and we have a
     subsequent order with regard to maintenance and child
     support.

          [Ms. McSkimming’s attorney]: Yeah. With respect
     to the child support, right now there is not an
     agreement as to the –- either applicability or non-
     applicability of the Child Support Standards Act as
     there are some issues, as [petitioner’s attorney]
     eluded [sic] to, to be investigated by Mr. Cinelli.
                              - 4 -

     Therefore, that prior order shall continue, and upon
     Mr. Cinelli’s report back to the Court, we will then
     hopefully come to an agreement on the amount of child
     support to be paid, or, if not, we will, of course, set
     it down for further proceedings to make that ultimate
     determination. But we are not making that
     determination today.

           *        *     *     *        *      *      *

          THE REFEREE: * * * It would seem to me that once
     that visitation schedule has been set, it is simply a
     matter of calculation between yourselves and your
     attorneys as to how to then prorate the amount of
     support that’s going to be paid and how to break out of
     the present unallocated support, the figure of support
     and maintenance. Therefore, you shouldn’t have to
     appear in front of the Court so long as there is
     cooperation with Mr. Cinelli with regard to setting
     forth some reasonable visitation. * * *

     There was no further proceeding to fix a specific amount as

to child support.

     Ms. McSkimming had remarried by 2000.1   Petitioner

nevertheless paid Ms. McSkimming $400 per week during 2000, for a

total sum of $20,800.2

     During the year in issue, petitioner and Ms. McSkimming had

joint custody of their three children.    Ms. McSkimming had

physical custody, while petitioner had the right to reasonable

and liberal visitation.


     1
        Petitioner is uncertain of the year when Ms. McSkimming
remarried, believing that her remarriage occurred sometime from
1996 to 1998.
     2
        The record indicates that Ms. McSkimming did not include,
in her Federal income tax return for the 2000 taxable year, any
portion of this amount as gross income under secs. 61(a)(8) and
71(a).
                               - 5 -

     Petitioner filed a timely Form 1040, U.S. Individual Income

Tax Return, for the 2000 taxable year.   Petitioner claimed a

dependency exemption deduction for Daniel and a deduction for

alimony paid in the amount of $20,800.

     Respondent determined that petitioner was not entitled to a

deduction for alimony paid for the 2000 taxable year.

Discussion3

     Payments to support children generally are not deductible.

Sec. 71(c).   However, alimony or separate maintenance payments

generally are deductible by the payor spouse.   Sec. 215.   Alimony

or separate maintenance payments are defined by section 71(b),

which provides in part:

          SEC. 71(b). Alimony or Separate Maintenance
     Payments Defined.--For purposes of this section--

               (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 includible in gross income under
                this section and not allowable as a deduction
                under section 215,

                     (C) in the case of an individual legally


     3
        Since there is no material factual dispute, we decide the
issue in this case without regard to the burden of proof. See
sec. 7491; Rule 142(a); Higbee v. Commissioner, 116 T.C. 438
(2001).
                                - 6 -

                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.

     We look to the terms of the applicable instrument, or to

State law, if the instrument is silent on the matter.     See Kean

v. Commissioner, T.C. Memo. 2003-163.    Under New York law, child

support is “a sum to be paid pursuant to court order or decree by

either or both parents or pursuant to valid agreement between the

parties for care, maintenance and education of any unemancipated

child under the age of twenty-one years.”    N.Y. Dom. Rel. Law

secs. 236, 240 (McKinney 2003).    In contrast, an award of

“maintenance” shall terminate upon the death of either party in

an action for divorce or upon the recipient’s valid or invalid

marriage.   Id. sec. 236.   Upon application of either party, a New

York court may annul or modify any prior order or judgment as to

maintenance or child support.     Id.

     In the present case, Ms. McSkimming had physical custody of

the children during the year in issue.    Moreover, she had

remarried before 2000, and pursuant to the oral stipulation of

June 28, 1996, one-half of any balance of maintenance payments

became due at the time of her remarriage.    Petitioner
                                 - 7 -

nevertheless continued to make payments of $400 per week in 2000.

If such payments were for alimony or maintenance, as petitioner

contends, his obligation to make such payments would have ended

either under New York law or under the terms of the oral

stipulation.    His continuing to make payments after Ms.

McSkimming’s remarriage and her physical custody of the children

are factors that militate in favor of characterizing such

payments as for child support and not for alimony or separate

maintenance.4   We sustain respondent’s determination regarding

this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                              Decision will be entered

                                         for respondent.




     4
        We realize that, of petitioner’s three children, Brian
was at least 21 years old during 2000 and that New York law
defines child support as “a sum to be paid * * * for care,
maintenance and education of any unemancipated child under the
age of twenty-one years.” N.Y. Dom. Rel. Law secs. 236, 240
(McKinney 2003) (emphasis added). However, under New York law,
petitioner would still have to make child support payments at the
full amount until he filed an application with a New York court
and received approval to modify such payment amount. In any
event, even if they were alimony payments, they would be
voluntary and as such would still not be deductible by
petitioner.
