                       T.C. Memo. 1996-40



                     UNITED STATES TAX COURT



       JAMES STEWART AND MARY ANN LANPHERE, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2981-94.           Filed February 5, 1996.


     James Stewart Lanphere and Mary Ann Lanphere, pro sese.

     Mathew I. Root, for respondent.




                       MEMORANDUM OPINION

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

section 7443A(b)(3) of the Code and Rules 180, 181, and 182.

Unless otherwise indicated, all section numbers refer to the

Internal Revenue Code for the taxable year in issue, and all Rule

numbers refer to the Tax Court Rules of Practice and Procedure.

     Respondent determined a deficiency of $802 in petitioners'

1990 Federal income tax.   The Court must decide whether payments
                                  - 2 -

made by petitioner husband are deductible as alimony payments

under section 215.

     For clarity and convenience, the findings of fact and

opinion have been combined.

     Some of the facts in this case have been stipulated and are

so found.   Petitioners resided in Brocton, New York, at the time

they filed their petition.

     Petitioner James Stewart Lanphere (James), married Virginia

Jean Panek (Virginia) on December 13, 1970.       On December 14,

1978, their daughter, Renea Jean Lanphere (Renea), was born.

James also had a son from a previous relationship, Grove Jason

Lanphere (Grove), who lived with James and Virginia throughout

their marriage.

     In 1984, Virginia commenced divorce proceedings against

James in the Supreme Court, Chautauqua County, New York.       On

December 11, 1984, the parties appeared and in open court entered

into an oral stipulation that provided for the distribution of

their marital assets.    The stipulation also provided, in

pertinent part:

          That the custody of the infant child Renae [sic]
     Jean Lanphere shall be to * * * [Virginia].

                     *    *   *    *      *   *   *

          That * * * [James] shall pay to * * * [Virginia],
     as unallocated family support, the sum of $200 a week,
     for so long as the car payments are presently
     outstanding on the wife's 1980 Lebaron automobile. We
     represent that that should be approximately three
     months, but no more than six.
                                  - 3 -

          Subsequent to the payment of the loan on the
     Lebaron, the unallocated family support shall decrease
     in the amount of $140 a week, for so long as Grove * *
     * shall be present with * * * [Virginia].

                      *   *   *    *      *   *   *

          All future matters of child support, custody,
     visitation and maintenance shall be referred to the
     Chautauqua County Family Court, to hear, determine, and
     enforce.


     On April 1, 1985, a final Judgment of Divorce [the Judgment]

was issued by the Supreme Court of the State of New York, County

of Chautauqua.   The Judgment recited that James had withdrawn his

Notice of Appearance and permitted the action to proceed to

divorce by default.   The Judgment also directed that the oral

stipulation given in open court on December 11, 1984, be merged

in to and made a part of the final Judgment.          The relevant

language of the final Judgment ordered the following:

          ORDERED, ADJUDGED AND DECREED, that * * *
     [Virginia] shall have custody of the infant child of
     the marriage, viz., RENAE [sic] * * *

          ORDERED, ADJUDGED AND DECREED, that * * * [James]
     shall pay to * * * [Virginia], as unallocated family
     support, the sum of $200.00 per week, for so long as
     the car payments are presently outstanding on * * *
     [Virginia's] 1980 LeBaron automobile.
          That upon the payment of the loan on the LeBaron,
     the unallocated family support shall decrease to the
     amount of $140.00 per week, for so long as Grove * * *
     shall live with * * * [Virginia] * * * .


     Subsequent to the issuance of the Judgment, James petitioned

the Chautauqua County Family Court (Family Court) to modify the

previous support order contained in the Judgment.          On December
                                    - 4 -

17, 1985, the Family Court issued an "ORDER MODIFYING ORDER MADE

BY ANOTHER COURT (Support)", and an attached "FINDINGS OF FACT".

     The findings of fact provided, in pertinent part, that:

          4.   There is one child [Renea] aged 7 for whose
     support [James] is liable * * * .

                    *      *    *    *       *    *    *

           10.   The monthly needs of the child are:        $408.28


The Order directed James to "pay $100 per week for support,

effective 12-17-85, and payments are to be made direct to

[Virginia]".

     On their 1990 Federal income tax return, petitioners

deducted $5,200 as "alimony paid".          This sum represented the

$100.00 a week James was ordered to pay to Virginia.

     Respondent disallowed petitioners' $5,200 alimony deduction.

Respondent's position is that based upon the language of the

Judgment of Divorce and the subsequent order that modified the

Judgment, the payments made constitute nondeductible child

support payments.       Respondent further contends that petitioners

have only substantiated $1,425 in payments to Virginia.

     Petitioners argue that the payments are deductible as

alimony.   James testified that it was his understanding at the

time of his divorce that his ex-wife "was to pay the tax" on the

money he paid to her.      Petitioners further argue that James was

divorced on December 11, 1984, and, therefore, the pre-Tax Reform

Act of 1984 rules apply.       Petitioners contend that the term
                                - 5 -

"unallocated family support" found in the Judgment does not fix

the payments as child support under the pre-1984 rules.

       Petitioners bear the burden to prove that the Commissioner's

determinations are incorrect.   Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).    Deductions are a matter of legislative

grace and a taxpayer must be able to show that the deduction

sought comes within the express provisions of the statute.     Rule

142(a); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440

(1934).

       The deductibility of alimony is governed by sections 71 and

215.    The Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat.

795, applicable to divorce instruments executed after December

31, 1984, revised both sections.   The initial issue we must

decide is whether James' divorce instrument was executed as of

December 11, 1984, or April 1, 1985.

       Petitioners rely on the New York case of Jayson v. Jayson,

54 A.D.2d 687, 387 N.Y.S.2d 274 (1976), to support their view

that James was divorced as of December 11, 1984, the date of the

hearing in open court.    In Jayson, the Appellate Division of the

New York Supreme Court held that a judgment can be entered nunc

pro tunc in a divorce action after the death of one of the

parties, if such party was entitled to the divorce while both of

the parties were living.    Jayson v. Jayson, supra.
                                 - 6 -

     In the instant case, James is not seeking to have the

Judgment entered nunc pro tunc.    The Judgment specifically states

that it is:

          ORDERED, ADJUDGED AND DECREED, that * * *
     [Virginia] be and hereby is granted Judgment dissolving
     the marriage relation heretofore existing between the
     plaintiff, VIRGINIA * * * and the defendant, JAMES * * *.

The oral stipulation of December 11, 1984, was merged into the

Judgment, which was signed by the Chautauqua County Supreme Court

justice on April 1, 1985, and entered on April 3, 1985.      The

payments in question were made pursuant to that Judgment, as

modified on December 17, 1985.    Thus, the pertinent divorce

instrument in this case was executed after December 31, 1984.

Consequently, sections 71 and 215, as amended by the Tax Reform

Act of 1984, govern the payments in issue.

     Section 215(a) allows an individual, in computing adjusted

gross income, to deduct amounts paid during the year if such

amounts are includable in the gross income of the recipient under

section 71(a).   Section 71(c)(1) specifically excludes from the

recipient's gross income any "part of any payment which the terms

of the * * * 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."    Thus, a sum fixed by the

instrument or agreement as payable for child support is not

deductible by the payor as alimony.      Sec. 71(c)(1); sec. 1.71-
                               - 7 -

1T(c), Q&A 15-16, Temporary Income Tax Regs., 49 Fed. Reg. 34456-

34457 (Aug. 31, 1984).

     Based on the record, we find that James paid $5,200 to

Virginia in 1990.   However, we conclude that the $5,200 paid to

Virginia in 1990 constituted nondeductible child support.     The

Judgment specifically stated that James' payments were to be $140

a week for so long as Grove, James' son, lived with Virginia.

Additionally, the December 17, 1985, modification of the Judgment

obtained by James to reduce his support payments to $100 a week

was based on the factual findings that there was one child,

Renea, for whose support James was liable, and that Renea's

monthly support needs equaled $408.28 a month.     Consequently, we

find that the $100 a week payments were fixed "as a sum which is

payable for the support of children of the payor spouse."     Sec.

71(c).   We note that the result would be the same under the pre-

1984 rules.   See, e.g., Sullivan v. Commissioner, T.C. Memo.

1995-240.

     For these reasons, we sustain respondent's determination

that the payments made by James in 1990 constituted nondeductible

child support.

                                       Decision will be entered for

                               respondent.
