                         T.C. Memo. 2009-49



                       UNITED STATES TAX COURT



             EDWIN RITTER JONAS, III, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6384-07.              Filed March 5, 2009.



     Edwin Ritter Jonas, III, pro se.

     Carol-Lynn E. Moran, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     HAINES, Judge:   Respondent determined deficiencies with

respect to petitioner’s Federal income taxes as follows:

                      Year           Deficiency

                      2002            $10,193
                      2003                287
                                - 2 -

     The issue for decision after concessions1 is whether

petitioner is entitled to a $36,000 alimony deduction under

section 215(a) for each of the years 2002 and 2003 (the years at

issue).2

                          FINDINGS OF FACT

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

The stipulation of facts and the supplemental stipulation of

facts, together with attached exhibits, are incorporated herein

by this reference.    At the time petitioner filed his petition, he

resided in Montana.

     Petitioner divorced his wife, Linda Jonas (Ms. Jonas), in

New Jersey in 1988.   On January 12, 1996, after a series of

acrimonious legal battles involving child custody and alimony

issues, the Superior Court of New Jersey Chancery Division

(Chancery Division) imposed on a portion of his property a

constructive trust for the benefit of Ms. Jonas.   The Chancery

Division instructed that the property would be used to guarantee

payments of medical expenses, child support, alimony, and counsel

fees to Ms. Jonas, as well as reimbursements to a child’s


     1
      Petitioner concedes that he underreported his gross
receipts by $15,049 in 2002 and $3,706 in 2003. Respondent
concedes that petitioner is entitled to a home mortgage interest
expense deduction of $7,748 for 2002.
     2
      Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and all Rule references
are to the Tax Court Rules of Practice and Procedure. Amounts
are rounded to the nearest dollar.
                                - 3 -

brokerage account and other expenses as deemed necessary.     Ms.

Jonas was authorized to sell trust property to ensure payment of

spousal and child support.

     On May 19, 1999, the Chancery Division ordered petitioner to

make alimony and other support payments of $3,000 per month to

Ms. Jonas.   Petitioner did not make the payments, and real

property held in constructive trust was sold in order to provide

Ms. Jonas with funds for arrearages, attorney’s fees, alimony,

and child support.    These funds were exhausted by the end of

2001.

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

Tax Return, for both 2002 and 2003.     Petitioner claimed a $36,000

alimony deduction for each year.    However, petitioner did not

make direct alimony payments to Ms. Jonas in either 2002 or 2003,

nor did Ms. Jonas receive payments from petitioner of any kind

during those years.

     On February 6, 2006, petitioner executed a Form 872, Consent

to Extend the Time to Assess Tax, for 2002 and 2003, thereby

extending the period of limitations until December 31, 2007.      On

February 13, 2006, respondent executed the extension.

     On May 23, 2006, the Chancery Division entered an order

against petitioner for $243,000 in unpaid alimony from April 1,

1999, through December 31, 2005.    The Chancery Division also

entered a judgment against petitioner for $695,477 and interest
                                - 4 -

of $147,205 for accruals resulting from petitioner’s divorce from

Ms. Jonas.

      On January 4, 2007, respondent timely mailed a notice of

deficiency to petitioner.   The notice disallowed alimony

deductions petitioner claimed in both 2002 and 2003.    Petitioner

filed a timely petition with this Court, and a trial was held on

April 21, 2008, in Philadelphia, Pennsylvania.

                               OPINION

      Section 215(a) provides that an individual is allowed as a

deduction the amount equal to the alimony or separate maintenance

payments paid during the individual’s taxable year.    The term

“alimony or separate maintenance payment” means any alimony or

separate maintenance payment (as defined in section 71(b)) which

is includable in the gross income of the recipient under section

71.   Sec. 215(b).   For Federal income tax purposes, payments are

alimony includable in a spouse’s gross income when the following

requirements are met:   (1) The payments are made in cash, (2) the

payments are received by (or on behalf of) the spouse under a

divorce or separation instrument, (3) the divorce or separation

instrument does not provide that the payments are not reportable

as alimony, (4) the spouses, if legally separated under a decree

of divorce or of separate maintenance, reside in separate

households at the time the payments are made, (5) the spouses do

not file a joint return, and (6) there is no liability to make
                                  - 5 -

any such payment, or a substitute for such payment, in cash or

property, after the death of the payee spouse.        Sec. 71(b)(1)(A)-

(D), (e).   Petitioner bears the burden of proving respondent’s

determinations are incorrect.     See Rule 142(a).

      Petitioner has failed to satisfy the requirements of section

71.   Petitioner did not make any payments to Ms. Jonas during the

years at issue.   Petitioner paid nothing to Ms. Jonas directly

during those years, and the proceeds from the sale of property

held in constructive trust were exhausted by the end of 2001.

Although the Chancery Division ordered petitioner to make

payments for the years at issue that would have constituted

alimony had they been made, petitioner made no payments.

Therefore, we hold that petitioner is not entitled to alimony

deductions for the years at issue.

      In reaching these holdings, the Court has considered all

arguments made and, to the extent not mentioned, concludes that

they are moot, irrelevant, or without merit.

      To reflect the foregoing,

                                               Decision will be entered

                                          under Rule 155.
