                   T.C. Summary Opinion 2011-61



                      UNITED STATES TAX COURT



                  RUSSELL T. HANDY, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 21287-09S.             Filed May 18, 2011.



     Russell T. Handy, pro se.

     Kevin W. Coy, for respondent.



     DEAN, Special Trial 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, subsequent section references

are to the Internal Revenue Code in effect for the year in issue,
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and all Rule references are to the Tax Court Rules of Practice

and Procedure.

     Respondent determined a deficiency of $3,300 in petitioner’s

Federal income tax for 2007.   The issue for decision is whether

petitioner is entitled to an alimony deduction for monthly

payments he made for “family support” in 2007.

                            Background

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

The stipulation of facts and the attached exhibits are

incorporated herein by reference.   Petitioner resided in

California when he filed his petition.

     Petitioner and his former wife were married on May 22, 1982.

Two children were born of the marriage.   On April 4, 2004,

petitioner and his former wife separated.   Their marriage was

dissolved under a judgment of dissolution on June 30, 2006.    The

judgment of dissolution included a stipulation for judgment

(stipulation) that addressed petitioner’s obligation to provide

family support.   Section II, paragraph 9 of the stipulation

states:   “Petitioner/Father shall pay as and for non-modifiable

family support the amount of one-thousand one-hundred dollars

($1,100.00) per month * * *.   It is the intent of the parties

that Petitioner/Father enjoy tax exemption benefit for non-

modifiable family support and Respondent [Mother] incur no tax
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consequence”.    The stipulation also outlines when petitioner’s

payment obligations cease:

           Petitioner/Father’s obligation to pay this family-
      support shall cease when any of the following occurs:

      a.    When the youngest child * * * attains the age of
            19, or has attained age 18 and has completed the
            twelfth grade, or is not a full-time high school
            student or is self-supporting;

      b.    In the event that both children have died;

      c.    When the youngest child * * * enters into a valid
            marriage, is on active duty with any of the armed
            forces of the United States of America, or
            receives a declaration of emancipation from a
            court of competent jurisdiction; or

      d.    Further order of the Court.

During the year at issue petitioner paid $1,100 each month to his

former wife.

      Petitioner timely filed his 2007 Federal income tax return

(return).    On his return petitioner claimed a deduction of

$13,200 ($1,100 a month for 12 months) for the family support he

paid in 2007.    Respondent disallowed petitioner’s deduction.

                             Discussion

I.   Burden of Proof

      Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those

determinations are erroneous.    Rule 142(a); see INDOPCO, Inc. v.

Commissioner, 503 U.S. 79, 84 (1992); Welch v. Helvering, 290

U.S. 111, 115 (1933).    The burden of proof for factual matters
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may be shifted to respondent under section 7491(a).   Petitioner

has not alleged that section 7491(a) applies, and the Court need

not decide whether the burden should be shifted because the Court

decides this case on the record, not on who has the burden of

proof.

II.   Alimony Deduction for Family Support Payments

      Generally, alimony payments are taxable to the recipient and

deductible by the payor.   Secs. 61(a)(8), 71(a), 215(a).   Section

215(b) defines alimony or separate maintenance as any “payment

(as defined in section 71(b)) which is includible in the gross

income of the recipient under section 71.”

      Section 71(b) provides a four-step inquiry for determining

whether a cash payment is alimony:

           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,

                     (B) the divorce or separation instrument does
                 not designate such payment as a payment which is
                 not includible in gross income * * * 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
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                    (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.

Payments are deductible as alimony only if all four requirements

of section 71(b)(1) are met.

     Section 71(c) provides that subsection (a) will not apply to

the portion of any payment which the terms of the divorce or

separation 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.    Sec. 71(c)(1) (flush language).

If any amount specified in the instrument will be reduced on the

happening of a contingency specified in the instrument relating

to a child or at a time that can clearly be associated with such

a contingency, an amount equal to the amount of the reduction

will be treated as an amount fixed as payable for the support of

children of the payor spouse.    Sec. 71(c)(2); Berry v.

Commissioner, T.C. Memo. 2005-91.    Some of the contingencies

listed in subparagraph (A) of section 71(c)(2) include attaining

a specific age, marrying, dying, or leaving school.

     Petitioner agreed at trial that payments made for child

support are not deductible.    Petitioner’s only argument in

support of his position is that the stipulation is a legal

document prepared by attorneys that authorizes a “tax exemption

benefit for non-modifiable family support” for petitioner.
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     The stipulation expressly provides that petitioner’s family

support obligation “shall cease” upon any one of a number of

possible contingencies centering upon his youngest child’s either

reaching a certain age, completing high school, marrying, joining

the military, or passing away.    It is clear from the stipulation

that petitioner’s family support obligations are for the benefit

of his children.1   Petitioner’s entire family support obligation

is a fixed amount payable for the support of his children.      See

sec. 71(c)(2).   Therefore, petitioner is not allowed an alimony

deduction for family support payments for 2007.      Respondent’s

determination is sustained.

     We have considered the parties’ arguments, and, to the

extent not mentioned, we conclude the arguments to be moot,

irrelevant, or without merit.

     To reflect the foregoing,


                                         Decision will be entered

                                  for respondent.




     1
      The Court notes that petitioner’s former wife specifically
waived spousal support under the terms of another section of the
stipulation.
