                         T.C. Memo. 1997-38



                       UNITED STATES TAX COURT



          FELICIANO AND DEBORA RIBERA, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 22678-94.                     Filed January 22, 1997.



     Feliciano and Debora Ribera, pro se.

     Christian A. Speck, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION

     VASQUEZ, Judge:    Respondent determined deficiencies in

petitioners' Federal income tax of $13,595 and $2,688 for the

1991 and 1992 tax years, respectively.

     All section references are to the Internal Revenue Code in

effect for the years in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.     After concessions,
                                 - 2 -

the issues remaining are (1) whether petitioner1 properly

deducted $13,9682 as alimony in 1991; and (2) whether petitioner

substantiated that he paid $190 to his former wife in 1992 as her

share of his royalty payments.

                         FINDINGS OF FACT

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

The stipulation of facts and the attached exhibits are

incorporated herein by this reference.      Petitioners resided in

Tahoe Valley, California, at the time the petition was filed in

this case.

     On December 11, 1989, the Superior Court of California,

Santa Clara County, entered judgment dissolving the marriage of

petitioner, Feliciano M. Ribera (a.k.a. Feliciano M. Rivera) and

his wife, Maria Elena Rivera (Maria).      In order to collect her

spousal support, Maria garnished petitioner's wages.

     During the divorce proceedings, the State court found that

petitioner attempted to and did, in fact, hide and dispose of

community assets.   Due to petitioner's conduct, the court ordered

petitioner to pay Maria's attorney's fees.

     In order to collect the awarded fees and costs, Maria's

attorneys, Peters, Peters & Ellingson (hereinafter Peters, et

al.), garnished petitioner's wages.      Subsequently, Peters, et

     1
        Hereinafter, all references to petitioner refer to
Feliciano Ribera.
     2
         All dollar amounts are rounded to the nearest dollar.
                                 - 3 -

al., sought the forced sale of real property owned by petitioner.

To satisfy the awarded attorney's fees, Peters, et al., filed a

declaration for issuance of writ of execution.    Under the writ of

execution, the sheriff levied petitioner's interest in real

property in California.    Peters, et al., subsequently filed an

application to enforce the orders and judgment awarding Maria

attorney's fees and costs.    Pursuant to the levy and an order for

sale of dwelling, the sheriff's office sold petitioner's real

property and issued a check payable to Peters, et al., in the

amount of $37,484, dated June 28, 1991.    The payments made

pursuant to this garnishment and the forced sale of petitioner's

property, less the amount petitioner has conceded, form the basis

for the current dispute.

     Petitioner's marital dissolution judgment also required

petitioner to pay Maria one-half of his royalty payments received

from books he had written.

                               OPINION

     Section 215(a) permits a deduction for the payment of

alimony during a taxable year.    Section 215(b) defines alimony as

alimony which is includable in the gross income of the recipient

under section 71.   Section 71(b)(1) defines alimony or separate

maintenance as any cash payment meeting the four criteria

provided in subparagraphs (A) through (D) of that section.

Accordingly, if any portion of the payments made by petitioner
                                  - 4 -

fails to meet any one of the four enumerated criteria, that

portion is not alimony and is thus not deductible by petitioner.

     Neither of the parties argues that the requirements of

subparagraphs (A), (B), and (C) of section 71(b)(1) have not been

satisfied.   Their disagreement focuses on the provisions of

subparagraph (D).3   Respondent claims that the amount in issue

was paid for petitioner's former wife's attorney's fees and

costs, and the liability to make such payments would not have

terminated upon petitioner's former wife's death.     Respondent

therefore argues that the requirements of subparagraph (D) are

not satisfied and that the payments are accordingly not alimony.

Petitioner argues that the payments in issue were alimony but

offers no legal authority in support of his position.4    Based on

various statements made at trial, as well as petitioner's trial

     3
         Sec. 71(b)(1)(D) provides:

          (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--

                          *   *   *   *   *   *   *

                     (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.
     4
        Petitioner filed a one-page statement of facts and
accompanying correspondence as his brief. No legal authorities
were presented, nor did petitioner address the merits of his
case.
                                - 5 -

memorandum, petitioner apparently believes that the payments in

question were alimony because they represent payments for

arrearages in alimony or, alternatively, even if they represent

payments for attorney's fees, they are still in the nature of

spousal support and therefore deductible alimony.

     Petitioner emphasizes that the order which garnished his

wages to pay the attorney's fees was titled “Earnings Withholding

Order For Support” and, therefore, contends that the payments

made to the attorneys were for support and are properly

considered alimony.    It is well settled that the labels which the

parties or a State court attach to payments are not conclusive.

Yoakum v. Commissioner, 82 T.C. 128, 140 (1984).    Rather, the

determination rests upon all of the surrounding facts and

circumstances.   Id.   Petitioner bears the burden of proof.   Rule

142(a).   Petitioner offered no evidence showing that the

attorney's fee obligation would end at his former wife's death.

We found petitioner's statements that the payments were for

arrearages in alimony and/or spousal support not to be credible.

Respondent's witness, Maria's divorce attorney, was, on the other

hand, credible in her explanation that the payments in issue were

for attorney's fees and costs awarded by the State court that

would not have terminated upon Maria's death.   There is

sufficient evidence in the record, based on all of the facts and

circumstances, that the payments in issue were for attorney's

fees, and the liability to make such payments would not have
                                 - 6 -

terminated upon Maria's death.    The payments do not therefore

satisfy the requirement of section 71(b)(1)(D).       Respondent's

determination as to this issue is therefore sustained.

     Petitioner offered no evidence that he made the $190 payment

which he claimed as a deduction, and, as stated previously, no

legal argument of any type was made on brief.       Petitioner bears

the burden of proof.   Rule 142(a).      Respondent's determination

must be sustained as petitioner has failed to satisfy his burden

of proof on this issue.

     To reflect the foregoing,

                                                  Decision will be

                                             entered under Rule 155.
