                  T.C. Summary Opinion 2008-123



                      UNITED STATES TAX COURT



                 STEVEN F. OHRMAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 9541-07S.                 Filed September 16, 2008.



     Michael C. Wetzel, for petitioner.

     Kelley A. Blaine, for respondent.



     KROUPA, 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.    Pursuant to section

7463(b), the decision to be entered is not reviewable by any




     1
      All section references are to the Internal Revenue Code in
effect for the years at issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure, unless otherwise
indicated.
                                       -2-

other court, and this opinion shall not be treated as precedent

for any other case.

       Respondent determined deficiencies in petitioner’s Federal

income tax of $11,447 for 2002, $12,687 for 2003, and $15,600 for

2004.      (Tax years 2002, 2003, and 2004 will be referred to as the

years at issue.)       After concessions,2 the issues for decision

are:

       (1)    Whether petitioner is eligible for married filing

jointly status for 2002 if he resided in the same household as

his spouse, from whom he was legally separated.       We hold that he

is not.

       (2)     Whether petitioner is entitled to deduct payments he

made to his legally separated spouse as alimony if he continued

to reside in the same household as his spouse during the years at

issue.       We hold that he is not.

       (3)    Whether petitioner is entitled to various deductions

for expenses reported on Schedule A, Itemized Deductions, for

2002 that petitioner’s legally separated spouse made for mortgage

interest, real estate taxes, a charitable contribution, and tax

preparation fees.       We hold that he is not.




       2
      Respondent conceded that petitioner was not liable for sec.
6662 accuracy-related penalties for negligence for 2002, 2003,
and 2004, the years at issue.
                                  -3-

       (4)   Whether petitioner is entitled to claim dependency

exemptions for his legally separated spouse and her grandniece

for 2002.     We hold that he is not.

       (5)   Whether petitioner is liable for an addition to tax

under section 6651(a)(1) for failure to file a return timely.        We

hold that he is not.

                              Background

       The parties submitted this case fully stipulated under Rule

122.    The stipulation of facts and the accompanying exhibits are

incorporated by this reference, and the facts are so found.

Petitioner resided in Oregon at the time he filed the petition.

       Petitioner and his spouse signed a Stipulated Judgment for

Unlimited Separation (legal separation agreement) in June 2001

citing irreconcilable differences.      The legal separation

agreement required petitioner to convey to his spouse his

interest in their personal residence, an individual retirement

account (IRA), a 401(k) account, and an automobile.      The legal

separation agreement also provided that petitioner would pay his

spouse certain amounts as spousal support, which were designated

as tax deductible alimony and which terminated at the death of

either party.     Petitioner paid his spouse spousal support of

$65,000 in 2002, $40,000 in 2003, and $48,000 in 2004.
                                 -4-

     Petitioner and his spouse continued to reside together after

their legal separation at the residence that petitioner’s spouse

received under the legal separation agreement until his spouse

sold the residence on June 10, 2002.   The two then rented a room

together in a hotel from June 21 until July 15, 2002, when

petitioner’s spouse purchased a new residence, and the two moved

there together.   They lived there until at least December 31,

2004.

     Petitioner filed Federal income tax returns for the years at

issue as an unmarried individual and claimed alimony deductions

for spousal support paid to his spouse under the legal separation

agreement per section 1(c).    Respondent examined the returns and

proposed adjustments disallowing the claimed alimony deductions

because the Ohrmans resided together despite their legal

separation.

     Petitioner and his spouse subsequently prepared amended

returns, however, for the years at issue attempting to elect

married filing joint status.   Petitioner claimed no alimony

deductions on the amended returns for any of the years at issue.

Instead, petitioner sought to deduct on the joint return for 2002

amounts his spouse had paid, such as $7,952 in property taxes,

$21,666 in mortgage interest, a $200 charitable contribution, and

tax preparation fees.   His spouse had also claimed a minor child,
                                -5-

her grandniece, known as KAL,3 as a dependent on the return she

had previously filed for 2002, and petitioner and his spouse

claimed the same child as a dependent on the joint return.

     Respondent considered the amended returns and issued a

deficiency notice to petitioner regarding the amended return

filed with his spouse for 2002 and his original returns for 2003

and 2004, on which he filed as a single individual.    Respondent

determined deficiencies for each of the years at issue,

disallowing joint filing status, the deductions for expenses his

spouse paid, and the dependency exemptions for his spouse and her

grandniece for 2002.   Respondent also disallowed the deductions

for alimony for 2003 and 2004 and determined an addition to tax

for 2002.   Petitioner filed a timely petition to contest the

determinations in the deficiency notice.

                            Discussion4

     We are asked to address five issues regarding the filing

status and the category of expenses paid by a legally separated

couple who continued to live together after their separation.       We




     3
      The Court uses the initials of minor children.   Rule
27(a)(3).
     4
      We note that petitioner’s spouse, Ruthe Ohrman, is no
stranger to this Court. See Ohrman v. Commissioner, T.C. Memo.
2003-301, affd. 157 Fed. Appx. 997 (9th Cir. 2005). The holding
in that case, which involved innocent spouse relief, is not
inconsistent with our holding.
                                 -6-

first address petitioner’s proper filing status for the years at

issue.

Joint Filing Status

     A husband and wife may elect to file jointly.    Sec. 6013(a).

An individual who is legally separated from his or her spouse

under a decree of divorce or of separate maintenance shall not be

considered married, however.    Secs. 6013(d)(2), 7703(a)(2).    We

look to State law to determine whether the taxpayer is “legally

separated” as of the end of the year.    Under Oregon law, a

judgment for a permanent and unlimited separation may be rendered

when irreconcilable difference between the parties have caused

the irremediable breakdown of the marriage.    Or. Rev. Stat. sec.

107.025(1) (2007).    Oregon law does not require, however, that

the spouses live apart before or after a court renders a judgment

for permanent and unlimited separation.    See Or. Rev. Stat. sec.

107.025(2) (2007).

     Petitioner and his spouse signed the legal separation

agreement in 2001.    The legal separation agreement is a decree of

legal separation.    It is of unlimited duration and specifies

irreconcilable differences as a jurisdictional basis.

Accordingly, petitioner and his spouse were no longer eligible to

file jointly during the years at issue.    We therefore sustain

respondent’s determination that petitioner’s filing status was

single.
                                -7-

Alimony

     We turn next to whether petitioner may deduct spousal

maintenance payments he made to his spouse in 2003 and 2004 even

though they continued to live together.

     It is a well-settled principle that tax deductions are a

matter of legislative grace, and taxpayers must show that they

come squarely within the terms of the law conferring the benefit

sought.   Rule 142(a); INDOPCO, Inc. v. Commissioner, 503 U.S. 79,

84 (1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440

(1934); Allen v. Commissioner, T.C. Memo. 2006-11, affd. 204 Fed.

Appx. 564 (7th Cir. 2006).   Alimony or separate maintenance

payments are generally deductible from income by the payor and

includable in the income of the payee.    Secs. 61(a)(8), 71(a),

215(a) and (b).

     The payments must meet certain requirements to be

deductible, however.   See secs. 71, 215.   The parties agree that

the payments satisfy all requirements of section 71(b)(1)5 except

that the payee spouse and the payor spouse may not be members of

the same household at the time the payment is made.    Sec.



     5
      The other requirements are that the payments be in cash,
be received by a spouse under a divorce or separation instrument
that does not designate the payments as not deductible, and
terminate at the death of the payee spouse. Sec. 71(b)(1)(A),
(B), and (D). The legal separation agreement between petitioner
and his spouse stated that the cash payments were deductible to
petitioner and terminated upon his spouse’s death, as required by
sec. 71(b)(1)(A), (B), (D).
                                 -8-

71(b)(1)(C).    Petitioner argues that the same-household

prohibition applies only if the parties are legally separated

under a decree of separate maintenance, not a legal separation

agreement.    Petitioner argues that the legal separation agreement

he signed with his spouse is not a decree of separate maintenance

because it fails to require the parties to live apart in the

future.   We disagree.   Petitioner relies upon several cases,

unlike his own, in which the husband and wife had signed a

temporary separation agreement but continued to live together.

Petitioner and his spouse were legally separated under a decree

of separate maintenance according to Oregon law, and they lived

together.    Accordingly, we sustain respondent’s determination

that petitioner may not deduct alimony or separate maintenance

payments to his spouse during the years at issue.

Real Property Taxes and Mortgage Interest Deduction for 2002

     We next address whether petitioner may deduct payments for

real estate taxes and home mortgage interest that his spouse

made, not petitioner.    A taxpayer may deduct real property taxes

for the year in which they are paid or accrued.    Sec. 164(a)(1).

A taxpayer may also deduct mortgage interest payments.      Sec. 163.

The mortgage must be the obligation of the taxpayer claiming the

deduction, however, not the obligation of another, for the

mortgage interest to be deductible by that taxpayer.     Golder v.

Commissioner, 604 F.2d 34, 35 (9th Cir. 1979), affg. T.C. Memo.
                                  -9-

1976-150; Jones v. Commissioner, T.C. Memo. 2006-176.      Petitioner

is not entitled to deduct any amounts for the real property taxes

or mortgage interest payments, which he did not pay and for which

he was not legally responsible.    We therefore sustain

respondent’s determinations to disallow petitioner deductions for

these expenses.

Charitable Contribution Deduction for 2002

     Petitioner also may not deduct a charitable contribution

that his spouse made.   A taxpayer may deduct charitable

contributions made in the taxable year.    Sec. 170.   Accordingly,

we sustain respondent’s determination denying petitioner a

charitable contribution deduction.

Tax Preparation Fees for 2002

     We next address whether petitioner may deduct tax

preparation fees his spouse incurred to prepare a return for

2002.   It is well established that fees incurred in the

preparation and determination of Federal taxes may be deductible.

Sec. 212.   Petitioner is not entitled to this deduction, however,

because his spouse incurred the expense and they were not

entitled to file a joint return.    Accordingly, we sustain

respondent’s determination denying petitioner any tax preparation

fees.
                                -10-

Dependency Exemption for 2002

     The next issue we decide is whether petitioner is entitled

to claim his spouse and her grandniece, KAL, as dependents on the

return petitioner filed for 2002.      Petitioner and his spouse were

legally separated as of 2001.   Thus, petitioner is not entitled

to a dependency exemption for his spouse because they were

legally separated and could not file jointly.

     Petitioner presented no evidence of his relationship to KAL,

and he provided no evidence to support that he was entitled to an

exemption for her.   His spouse originally claimed KAL as a

dependent on the single return she filed.     Thus, we sustain

respondent on this issue and hold that petitioner is not entitled

to claim his spouse or KAL as a dependent.

Addition to Tax

     Respondent determined petitioner was liable for an $18.056

addition to tax under section 6651(a)(1) for failure to file a

return timely for 2002.   Section 6651(a)(1) provides for an

addition to tax for failure to file a tax return on or before the

specified filing date.    Respondent bears the burden of production

with respect to the addition to tax.     See sec. 7491(c); Higbee v.

Commissioner, 116 T.C. 438, 446-447 (2001).      To meet this burden,

respondent must produce sufficient evidence that it is


     6
      The flush language at the end of sec. 6651(a) provides a
minimum of $100 for a sec. 6651(a)(1) addition to tax. There is
no explanation in the record why this does not apply.
                                 -11-

appropriate to impose the addition to tax.      See Higbee v.

Commissioner, supra at 446-447.    Neither respondent nor

petitioner addressed the issue on brief, and there is no

information in the record indicating when petitioner filed the

return for 2002.   Accordingly, we find that respondent did not

meet his burden of production and therefore find that petitioner

is not liable for the late filing addition for 2002.

Conclusion

     We sustain respondent’s determinations except with respect

to the addition to tax under section 6651(a)(1).

     To reflect the foregoing,


                                             Decision will be entered

                                        under Rule 155.
