                    T.C. Summary Opinion 2010-2



                       UNITED STATES TAX COURT



         MICHAEL RAYMOND GLATFELTER, SR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 29405-08S.             Filed January 11, 2010.



     Michael Raymond Glatfelter, Sr., pro se.

     Jon D. Feldhammer, for respondent.



     LARO, 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 other court, and this

opinion shall not be treated as precedent for any other case.


     1
      Subsequent section references are to the applicable
versions of the Internal Revenue Code. Rule references are to
the Tax Court Rules of Practice and Procedure.
                                 - 2 -

     Petitioner petitioned the Court to redetermine respondent’s

determination of a $1,487 deficiency in petitioner’s 2006 Federal

income tax.   The issue for decision is whether petitioner may

deduct as alimony a court-ordered $4,000 payment for his former

spouse’s legal fees attributable to their divorce, of which he

claimed a deduction of $3,400.    We hold he may not.

                             Background

     Some facts were stipulated.    The parties’ stipulation of

facts and the exhibits submitted therewith are incorporated

herein by this reference.    Petitioner resided in California when

his petition was filed.

     The marriage of petitioner and his former wife was nullified

in October 2003.   Since that time, petitioner has paid $200 per

month to his former spouse as spousal support.

     On June 15, 2006, after a property settlement hearing on May

22 of that same year, the Superior Court of California entered a

“Findings and Orders After Hearing.”      In relevant part, the court

ordered the following:

     1. Petitioner, MICHAEL R. GLATFELTER, shall pay four
     thousand dollars ($4,000) forthwith towards * * * [his
     former spouse’s] attorney fees and costs.

     2. The * * * [former spouse’s] request for modification
     of spousal support is denied pending trial.

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

Tax Return, for 2006.    On that return petitioner claimed an

adjustment to gross income for alimony payments totaling $5,800.
                               - 3 -

On September 26, 2008, respondent issued petitioner a notice of

deficiency disallowing the adjustment.    Respondent concedes that

petitioner may deduct $2,400 of the $5,800 as alimony.

      The $3,400 that remains at issue is attributable to the

court-ordered payment of $4,000 for petitioner’s payment of his

former spouse’s attorney’s fees.   Petitioner claimed a deduction

of $3,400 because he paid only that much of the $4,000 during

2006.

                             Discussion

I.    Burden of Proof

      Generally, the Commissioner’s determinations in a notice of

deficiency are presumed correct, and the taxpayer has the burden

of proving that the determinations are erroneous.    See Rule

142(a); Welch v. Helvering, 290 U.S. 111, 115 (1933).    In certain

circumstances, however, section 7491(a)(1) places the burden of

proof on the Commissioner.   Because the facts are not in dispute,

we decide this case without regard to the burden of proof.

II.   Deduction of Attorney’s Fees as Alimony Expense

      An individual may deduct the amount of alimony or separate

maintenance payments paid during the taxable year.    Sec. 215(a).

Whether payments constitute “alimony or separate maintenance

payments” for purpose of section 215(a) is determined by

reference to section 71(b)(1), which provides:
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          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,[2]

                 (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
            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 such payment (in cash or property)   as a
            substitute for such payments after the   death of
            the payee spouse. [Emphasis added.]


     Respondent concedes that petitioner’s payment of his former

spouse’s attorney’s fees and costs satisfies the first three

subparagraphs of section 71(b)(1).    The parties lock horns on

whether the payment at issue satisfies subparagraph (D); that is,



     2
      The term “divorce or separation instrument” means (A) a
decree of divorce or separate maintenance or a written instrument
incident to such decree, (B) a written separation agreement, or
(C) a decree (not described in (A)) requiring a spouse to make
payments for the support or maintenance of the other spouse.
Sec. 71(b)(2).
                                - 5 -

whether the obligation to pay the court-ordered attorney’s fees

and costs would have terminated in the event of the death of

petitioner’s former spouse.

     Under section 71(b)(1)(D), a payor must have no liability to

continue payments after the recipient’s death in order for those

payments to constitute alimony.   See Johanson v. Commissioner,

541 F.3d 973, 976-977 (9th Cir. 2008), affg. T.C. Memo. 2006-105.

In deciding whether payments are alimony under section

71(b)(1)(D), the Court must first examine the divorce or

separation instrument to determine whether it contains a

provision that terminates the payor spouse’s liability for a

payment upon the death of the recipient spouse.    If the

instrument is silent as to the existence of a postdeath

obligation, the Court will then look to see whether the payment

terminates upon the recipient spouse’s death by operation of

State law.   See Sperling v. Commissioner, T.C. Memo. 2009-141.

     California law provides that “Except as otherwise agreed by

the parties in writing, the obligation of a party under an order

for the support of the other party terminates upon the death of

either party or the remarriage of the other party.”    Cal. Fam.

Code sec. 4337 (West 2004).    California law also provides that a

court in a marriage dissolution proceeding may order one party to

pay the other party’s attorney’s fees and costs.    Cal. Fam. Code

sec. 2030 (West Supp. 2009).   Cal. Fam. Code sec. 2030 provides
                                - 6 -

that such fees and costs may be awarded for legal services

rendered or costs incurred before or after the commencement of

the proceeding.    That section does not provide that the payor’s

obligation to pay these fees and costs terminates upon the death

or remarriage of the other spouse.      Id.

     California courts have differentiated attorney’s fees from

spousal support.   For example, in Newport v. Newport, 201 Cal.

Rptr. 647, 648 (Ct. App. 1984), the court held that, under the

statutory predecessor to Cal. Fam. Code sec. 2030, the remarriage

of a former spouse did not preclude her right to attorney’s fees

in a postdissolution proceeding.   Moreover, California caselaw

holds that the death and remarriage provisions of Cal. Fam. Code.

sec. 4337 should be interpreted “in a similar fashion.”    See

Johanson v. Commissioner, supra at 977 n.1; see also Cesnalis v.

Cesnalis, 131 Cal. Rptr. 2d 436, 439 (Ct. App. 2003).

     Petitioner claimed as an alimony deduction a $3,400 expense

payable to his former spouse for attorney’s fees and costs.

Pursuant to section 71(b)(1)(D), petitioner may deduct as alimony

only those expenses his liability for which does not survive his

former spouse’s death.   In the Findings and Orders After Hearing,

filed as a property settlement on June 15, 2006, the Superior

Court of California ordered that “Petitioner, Michael R.

Glatfelter, shall pay four thousand dollars ($4,000) forthwith

towards * * * [his former spouse’s] attorney fees and costs.”
                              - 7 -

The court order also stated that his former spouse’s “request for

modification of spousal support is denied pending trial.”     The

order is silent as to whether petitioner’s liability for the

attorney’s fees and costs would extend beyond the death of his

former spouse.

     Accordingly, this Court must determine whether petitioner’s

$4,000 liability would have terminated upon his former spouse’s

death by operation of California law.   It is clear that the

Superior Court of California in its order sought to distinguish

between attorney’s fees subject to Cal. Fam. Code sec. 2030 and

spousal support payments subject to Cal. Fam. Code sec. 4337.

The court order contained two separate provisions--the first

mandating petitioner’s payment of his former spouse’s attorney’s

fees, and the second denying his former spouse modification of

petitioner’s spousal support payments pending trial.

     In addition, California caselaw provides that attorney’s

fees derived from a postdissolution proceeding do survive a

remarriage of the payee spouse.   See Newport v. Newport, supra.

The Court of Appeals for the Ninth Circuit has decided that the

remarriage and death provisions of Cal. Fam. Code sec. 4337

should be interpreted “in a similar fashion.”   Johanson v.

Commissioner, supra at 977 n.1.   Applying this reasoning, we

conclude that petitioner’s liability to pay his former spouse’s

attorney’s fees of $4,000 would survive her death.
                                 - 8 -

     Accordingly, petitioner’s payment of attorney’s fees to his

former spouse was not a payment of alimony within the meaning of

section 71(b)(1).   See Stedman v. Commissioner, T.C. Memo. 2008-

239; Ribera v. Commissioner, T.C. Memo. 1997-38, affd. without

published opinion 139 F.3d 907 (9th Cir. 1998).       As a result,

petitioner’s deduction of the disputed $3,400 is denied.

     To reflect the foregoing,


                                              Decision will be entered

                                         under Rule 155.
