                  T.C. Summary Opinion 2004-26



                     UNITED STATES TAX COURT



                JOHN SCOTT KRACKE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1092-03S.            Filed March 9, 2004.


     John Scott Kracke, pro se.

     William C. Bogardus, for respondent.



     POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 74631 of the Internal Revenue Code

in effect at the time the petition was filed.    The decision to be

entered is not reviewable by any other court, and this opinion

should not be cited as authority.




     1
        Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code in effect for the year in issue.
                                - 2 -

     Respondent determined a deficiency of $19,578 in

petitioner’s 2000 Federal income tax.      The issue is whether

$48,000 of the $128,000 payments petitioner made to his former

wife constitute deductible alimony payments or, in the

alternative, nondeductible child support payments.      Petitioner

resided in Darien, Connecticut, at the time the petition was

filed.

                              Background

     Petitioner married Julie Skakel (Ms. Skakel-Kracke) on

August 4, 1984.   Petitioner and Ms. Skakel-Kracke had three

children during their marriage:    John Scott, Jr. (Scotty), born

May 8, 1986; George Maxwell (George), born December 26, 1989; and

Claire Hayden, born June 7, 1991.    The Superior Court, Judicial

District of Stamford/Norwalk, State of Connecticut, entered a

Judgment on November 18, 1999, whereby petitioner and Ms. Skakel-

Kracke were divorced.   The Separation Agreement, executed the

same day, provided in pertinent part:

     IV.   PERIODIC ALIMONY

         4.1 The $9K Monthly Base Amount. In a continuation of
    Judge Tierney’s 1/14/98 Pendente Lite Order (No. 110.00)
    (the “P/L Order”), the per month base amount of $9K (or,
    $108K/year) shall be paid to the Wife as unallocated
    periodic alimony and support (the “Periodic Alimony”), which
    amount is predicated on the Husband’s current annual income
    of $258.7K, as follows: (i) the P/L Order shall continue in
    full force and effect until the last day of the month during
    which a judgment (the “Judgment”) is entered in the Action;
    and (ii) on the fourth business day of each succeeding
    month, the Husband shall pay the Periodic Alimony (subject
    to the other terms of this Agreement). The monthly amount
                                   - 3 -

     shall be reduced by $2K on September 1st of the summer
     immediately succeeding each of Scotty’s and George’s
     graduation from high school. (Illustration: Assuming Scotty
     graduates from high school on 6/20/2004, the Periodic
     Alimony would step down from $9K per month to $7K per month
     effective 9/1/2004.)

     *           *        *          *        *         *            *

          4.2 The Additional Periodic Alimony Re: An Increase in
     the Husband’s Compensation. * * * [T]he Husband shall pay
     20% (the “20% Payment”) of the gross amount of any bonuses,
     commissions or additional salary received in a calendar year
     * * * to the Wife as additional Periodic Alimony * * *.

     Pursuant to the Separation Agreement, petitioner paid Ms.

Skakel-Kracke $128,000 in 2000, which consisted of the $9,000

monthly payments plus 20 percent of his bonuses.    In preparing

his 2000 Federal income tax return, petitioner deducted $128,000

as alimony payments.    Respondent, in the notice of deficiency,

disallowed $48,000 of the payments ($2,000 each per month for

Scotty and George).

                              Discussion

     Section 215(a) allows a deduction for amounts paid for

"alimony or separate maintenance payments" that are includable in

the recipient’s gross income under section 71(a).    An alimony or

separate maintenance payment is defined by section 71(b).    Sec.

215(b).   Section 71(c) provides, in pertinent part:

           (c)   Payments to Support Children.–-

                  (1) In general.–-* * *[Amounts received as
           alimony or separate maintenance payments] shall not
           apply to that part 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
                              - 4 -

          which is payable for the support of children of the
          payor spouse.

                 (2) Treatment of certain reductions related to
          contingencies involving child.--For purposes of
          paragraph (1), if any amount specified in the
          instrument will be reduced--

                    (A) on the happening of a contingency
                 specified in the instrument relating to a child
                 (such as attaining a specified age, marrying,
                 dying, leaving school, or a similar
                 contingency), or

                    (B) at a time which can clearly be associated
                 with a contingency of a kind specified in
                 subparagraph (A),

          an amount equal to the amount of such reduction will be
          treated as an amount fixed as payable for the support
          of children of the payor spouse.

     The Separation Agreement provides for a reduction of the

unallocated periodic alimony and support payments by $2,000 each

for Scotty and George on a certain date after each of their

graduations from high school, and that provision is clearly a

contingency related to those children.   See Hammond v.

Commissioner, T.C. Memo. 1998-53 (payments determined to be child

support when the payments terminated on the taxpayer’s child’s

18th birthday); Israel v. Commissioner, T.C. Memo. 1995-500

(payment determined to be child support when contingent on child

residing with recipient spouse).

     Petitioner asserts that it is inequitable to treat the

payments as child support because it was intended by the parties

that he would be able to deduct the payments in full.     This may
                                 - 5 -

have been what the parties intended, but we cannot rewrite the

Separation Agreement.    While we may be sympathetic with

petitioner’s position, this Court also cannot rewrite statutes

enacted by Congress in order to reach what may be perceived as a

more equitable result.    See Commissioner v. Gooch Milling &

Elevator Co., 320 U.S. 418 (1943).       Respondent is sustained.

     Reviewed and adopted as the report of the Small Tax Case

Division.

     To reflect the foregoing,

                                         Decision will be entered

                                 for respondent.
