                   T.C. Summary Opinion 2007-213



                      UNITED STATES TAX COURT



                DENIS M. KATCHMERIC, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12051-05S.          Filed December 19, 2007.



     Denis M. Katchmeric, pro se.

     Andrew M. Stroot, for respondent.


     DAWSON, Judge:   This case was heard pursuant to the

provisions of section 7463 of the Internal Revenue Code in effect

when the petition was filed.   Pursuant to section 7463(b), the

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

this opinion shall not be treated as precedent for any other

case.   Unless otherwise indicated, all subsequent section

references are to the Internal Revenue Code in effect for the

year in issue.
                                 - 2 -

     The trial was conducted by Special Trial Judge Carleton D.

Powell, who died after the case was submitted.   The parties have

declined the opportunity for a new trial or for supplementation

of the record and have expressly consented to reassignment of the

case for opinion and decision.

     Respondent determined a deficiency of $4,916 in petitioner’s

Federal income tax for 2002.   The only issue remaining for

decision is whether petitioner may deduct as alimony under

section 215(a) certain payments he made to his wife in 2002.

This requires us to decide whether the payments were made

pursuant to a written separation agreement under section

71(b)(2)(B) and, therefore, qualify as alimony as defined by

section 71(b)(1).1

                           Background

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

The stipulation of facts and the attached exhibits are


     1
      In his amended petition filed in this case, petitioner, who
had filed his Federal income tax return for 2002 as “married
filing separately” asserted that he should be entitled to file an
amended joint income tax return for that year even though his
wife would not agree to sign such a return or consent thereto.
Special Trial Judge Powell ruled on that issue at trial, stating
that “you are not entitled to a joint return status. Your wife
has not joined in a joint return. That question is resolved
against you.” Moreover, if either spouse files a separate tax
return for a taxable year, sec. 6013(b)(2)(B) provides that an
election thereafter to file a joint return may not be made after
there has been mailed to either spouse, with respect to such
taxable year, a notice of deficiency under sec. 6212, if the
spouse, as to such notice, files a petition with the Tax Court
within the time prescribed in sec. 6213.
                                - 3 -

incorporated herein by this reference.   When the petition was

filed, petitioner resided in Fairfax County, Virginia.

     Petitioner and Karen A. Deluca (Ms. Deluca) were married in

1984.   On October 16, 2001, they separated.   Her attorney

notified petitioner by letter dated December 7, 2001, that he had

been retained by Ms. Deluca for the purpose of obtaining a

divorce.    In the letter, the attorney stated that he was “in the

process of preparing a Separation and Property Settlement

Agreement” that would incorporate a provision requiring

petitioner to pay Ms. Deluca $1,300 per month as spousal support

until their marital home was sold, and that after the sale his

obligation would be reduced to $1,000 per month.      The letter

further stated that the separation agreement, when prepared,

would incorporate the following additional terms:

          A. Karen will file for divorce on a no-fault
     basis, based upon living separate and apart from you
     continuously, without cohabitation, for the appropriate
     time required under Virginia law.

        *        *       *       *       *        *         *

          C. You will continue to pay the mortgage on the
     marital home until it is sold. Upon the sale of the
     home, after deduction of the customary costs of sale,
     you and Karen will divide equally the proceeds.

          D. You will continue to provide health insurance
     for Karen.

          E. You will retain as your separate property all
     investments titled in your name alone. Karen will
     retain as her separate property all investments titled
     in her name alone. In addition, Karen shall retain as
     her separate property all investments now titled in
     your joint names.
                               - 4 -

          F. Karen will receive a share of your pension upon
     your retirement from the government.

          G. Each of you will remain responsible for the
     loan payments, maintenance, and insurance for your
     respective automobiles.

          H. You will pay Karen’s attorney fees in
     connection with completing the Separation and Property
     Settlement Agreement and obtaining a no-fault divorce.

     There is nothing in the record showing that petitioner

responded in writing or orally agreeing to any of the items,

including spousal support, contained in the letter he received

from Ms. Deluca’s attorney.   However, each month from January

through August 2002, and again in November and December,

petitioner sent Ms. Deluca a check for $1,300 bearing the

notation “Support”.   Each check was endorsed by Ms. Deluca and

deposited in her personal bank account.   Petitioner did not make

any payments to her for September and October because he learned

in September 2002 that Ms. Deluca had directed that their Federal

income tax refund for the tax year 2001 claimed on their joint

return be deposited into her personal bank account.   The tax

refund amount was greater than $2,600.

     Ms. Deluca’s attorney never prepared a separation and

property settlement agreement containing the terms described in

his letter to petitioner dated December 7, 2001.
                               - 5 -

     Apparently, both Ms. Deluca and petitioner were dissatisfied

with their negotiations regarding spousal support, and other

assets and property items, because she filed a divorce proceeding

in 2002 against petitioner in the Circuit Court of Fairfax

County, Virginia, Chancery No. 182004, in which she sought

pendente lite relief.   Their negotiations continued

unsuccessfully.   Finally, after conducting hearings, the Circuit

Court judge entered a pendente lite order on January 24, 2003,

which provided, among other things, that petitioner was to pay

directly to Ms. Deluca $1,200 per month as spousal support

beginning February 1, 2003.   Both parties were represented by

counsel in that proceeding.

     Petitioner and Ms. Deluca did not enter into any other

agreement purporting to be a “written separation agreement” prior

to the issuance of the pendente lite order.

     On June 25, 2004, a final decree of divorce was entered by

Judge Keith of the Circuit Court of Fairfax County, Virginia,

which provided for the distributions of marital assets as well as

a further reduction in spousal support, as follows:

          ORDERED, ADJUDGED, AND DECREED that beginning in
     the month of July, 2004, Defendant shall pay
     Complainant for spousal support and maintenance the sum
     of Nine Hundred and No Dollars ($900.00) per month.
     Payments shall be made on the first (1st) day of each
     month beginning July 1, 2004, and continuing on the
     first (1st) day of each month thereafter in accordance
     with Section 20-109, 1950 Code of Virginia, as amended,
     until the death of either party, or until the
     remarriage of Complainant or until the Complainant
     cohabits with an unrelated male in a relationship
                                     - 6 -

     analogous to a marriage for a period of more than one
     (1) year;

            AND, IT IS FURTHER ORDERED

        *        *          *         *        *        *       *

          5. Support is to be paid by a payroll deduction
     order to Karen Ann Deluca [listing her savings account
     number]. The parties shall give each other and the
     Court at least thirty (30) days written notice, in
     advance, via certified mail, return receipt requested,
     of any change of address and any change of telephone
     number within thirty (30) days after such change;

          6. In determination of a support obligation, the
     support obligation as it becomes due and unpaid creates
     a judgment by operation of law.

     On his Federal income tax return for 2002, which was filed

as “married filing separately”, petitioner claimed an alimony

deduction of $15,600 for amounts he paid to Ms. Deluca in that

tax year.

     Respondent disallowed petitioner’s claimed alimony deduction

in the deficiency notice because verification and acceptable

documents were not provided.

                                  Discussion

     A taxpayer may deduct alimony or separate maintenance

payments.    Sec. 215(a).       Alimony is any payment in cash if, among

other requirements, it is received by (or on behalf of) a spouse

under a divorce or separation instrument.          Sec. 71(b)(1)(A).   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
                                - 7 -

decree (not described in subparagraph (A)) requiring a spouse to

make payments for the support or maintenance of the other spouse.

Sec. 71(b)(2).   No decree (or order) by the Circuit Court of

Fairfax County was in effect when petitioner made his payments to

Ms. Deluca in 2002.    Thus, we must decide whether there was a

written separation agreement in effect before January 24, 2003,

when the pendente lite order fixing spousal support was entered

by that court.

     The term “written separation agreement” is not defined in

the Internal Revenue Code, the applicable regulations, or in the

legislative history.    Bogard v. Commissioner, 59 T.C. 97, 100

(1972).   A written separation agreement is a clear, written

statement of the terms of support for separated parties.    In

Bogard v. Commissioner, supra at 101, we stated:

          Logically, it appears Congress was interested in a
     clear statement in written form of the terms of support
     where the parties are separated. In this manner it is
     administratively convenient for the Commissioner to
     apprise himself of the amount of gross income to the
     wife and the corresponding deduction allowable to the
     husband. * * *

See also Leventhal v. Commissioner, T.C. Memo. 2000-92; Ewell v.

Commissioner, T.C. Memo. 1996-253.

     Letters which do not show a meeting of the minds between the

parties cannot collectively constitute a written separation

agreement.   Grant v. Commissioner, 84 T.C. 809, 822-823 (1985),

affd. without published opinion 800 F.2d 260 (4th Cir. 1986).

However, we have recognized that where one spouse assents in
                               - 8 -

writing to a letter proposal of support by the other spouse, a

valid written separation agreement has been held to exist.    See

Azenaro v. Commissioner, T.C. Memo. 1989-224.

     Petitioner contends that he is entitled to an alimony

deduction of $15,600 for the payments he made to Ms. Deluca in

2002 because the December 7, 2001, letter he received from her

attorney contained an offer, among other items, for separation

support payments of $1,300 per month, which he accepted when he

made payment by checks, marked “support”, payable to Ms. Deluca,

and cashed by her in 2002.   Although petitioner never answered

either by letter or orally the proposal for spousal support

mentioned in the letter from Ms. Deluca’s attorney, he argues

that he performed pursuant to an executory contract which

satisfied the “written separation agreement” requirement of

section 71(b)(2)(B).   To the contrary, respondent contends that

the facts and circumstances in this case do not establish that

petitioner’s payments to Ms. Deluca in 2002 were made pursuant to

a written separation agreement entered into by them.

     We agree with respondent for the following reasons.    First,

the most that can be said about the attorney’s letter to

petitioner is that it is only evidence of a prospective course of

action.   It contained proposals of several terms that might have

been included in a future separation and property settlement

agreement favorable to Ms. Deluca.     It was simply the beginning

of a negotiation process by them with respect to spousal support
                                - 9 -

and the division of their assets and property.    Petitioner

obviously did not agree with all of the proposed items listed in

the letter.   At best, there was nothing more than a unilateral

offer to enter into a separation agreement.   Estate of Hill v.

Commissioner, 59 T.C. 846, 856-857 (1973).

     Second, petitioner’s action in writing checks to Ms. Deluca,

bearing the notation “support”, does not qualify as a writing

showing assent to the attorney’s proposal, as required by the

statute.   The fact that petitioner made the notations on the

checks does not show that he agreed to provide support under a

written separation agreement.   See Ewell v. Commissioner, supra.

There is no evidence in this record that there was ever any pre-

existing written agreement between Ms. Deluca and petitioner that

set monthly support payments.   The parties continued to negotiate

without success and under contentious conditions during most of

2002.   Petitioner testified that he retained an attorney in March

of that year and “then we started negotiating.”    Their failure to

reach an agreement on the terms of their separation resulted in

Ms. Deluca’s attorney’s filing for her divorce from petitioner in

the Circuit Court of Fairfax County, Virginia.    Hearings in that
                                - 10 -

proceeding culminated in the pendente lite order that required

spousal support payments of $1,200 per month beginning February

1, 2003.

     Third, there was no meeting of the minds between petitioner

and Ms. Deluca with respect to any spousal support payments

before the circuit court entered its pendente lite order on

January 24, 2003.   Grant v. Commissioner, supra at 822-823.   That

order is strong evidence of the failure of the parties to come to

a prior meeting of the minds.    Petitioner testified at trial in

the instant case that “he wasn’t going to pay any more”.   It was

then that Ms. Deluca went to the Circuit Court of Fairfax County

and sought the pendente lite order for spousal support.    If there

had been an existing written separation agreement at that time,

the circuit court would surely have honored and enforced it as a

binding contract.   We think petitioner’s declaration to Ms.

Deluca that he would no longer continue making monthly payments

to her shows that there was not a meeting of the minds with

respect to the proposed terms set forth in her attorney’s letter

of December 7, 2001.   What triggered the breakdown in their

negotiations for the amount of spousal support was that Ms.

Deluca was seeking more while petitioner wanted to pay less.   The

Circuit Court of Fairfax County resolved their controversy, first

by fixing the amount of monthly spousal support at $1,200 in its
                             - 11 -

pendente lite order, and finally in the final decree of divorce

on June 25, 2004, at $900 per month.

     Accordingly, on the basis of the facts and circumstances in

this record, we hold that petitioner is not entitled to an

alimony deduction for the payments he made to Ms. Deluca in 2002

because there was no written separation agreement.    In reaching

our holding, we have considered the arguments made by the

parties, and, to the extent not mentioned, we conclude that they

are irrelevant, moot, or without merit.

     To reflect the foregoing,

                                      Decision will be entered

                                 for respondent.
