                  T.C. Summary Opinion 2006-162



                     UNITED STATES TAX COURT



                 LEONARD SALESKY, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 20376-04S.                Filed October 5, 2006.


     Leonard Salesky, pro se.

     James N. Beyer, for respondent.



     GOLDBERG, Special Trial Judge:    This case was heard pursuant

to the provisions of section 7463 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.   Unless otherwise indicated,

subsequent section references are to the Internal Revenue Code in

effect for the year at issue, and Rule references are to the Tax

Court Rules of Practice and Procedure.
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       Respondent determined a deficiency of $2,894.58 in

petitioner’s 2002 Federal income tax.     The sole issue for

decision is whether petitioner is entitled to deduct attorney’s

fees paid in 2002 as alimony pursuant to section 71(b).      We hold

that he is not.

                             Background

       This case was submitted fully stipulated pursuant to Rule

122.    The stipulation of facts and the attached exhibits are

incorporated herein by reference.

       At the time the petition was filed, petitioner was

incarcerated at the South Woods State Prison in Bridgeton, New

Jersey.

       Petitioner was married to Anna L. Salesky, although the

underlying record is silent as to the actual dates of their

marriage and separation.    Ms. Salesky filed a petition seeking

the dissolution of the marriage in the Superior Court of New

Jersey, Chancery Division - Family Part, Burlington County, New

Jersey.    On June 4, 2002, the Court ordered petitioner to

contribute the sum of $7,500 directly to the law firm of Domers &

Bonamassa, P.C., as and for Ms. Salesky’s counsel’s fees in

connection with the underlying divorce proceeding.

       Paragraph 2 of the order provided: “Defendant shall

contribute the sum of $7,500 as and for plaintiff’s counsel fees

to date in the above captioned matter.     Said amount shall be paid
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within 45 days directly to the law firm of Domers & Bonamassa,

P.C.”   The order was silent as to the tax treatment of the

payment or whether petitioner’s obligation to pay Ms. Salesky’s

attorney’s fees would terminate upon her death.    Petitioner paid

Domers & Bonamassa, P.C., $7,500 in 2002.

     Petitioner timely filed his 2002 Federal income tax return,

as a married individual, filing separately.    Petitioner and Ms.

Salesky did not live together in 2002.

     Petitioner claimed an alimony deduction on line 33a of his

2002 return of $25,375.    Respondent disallowed $7,500 of the

amount claimed on line 33a.    This was the only adjustment that

respondent made to petitioner’s 2002 return.

                              Discussion

     The Commissioner’s determinations are presumed correct, and

taxpayers generally bear the burden of proving otherwise.     Welch

v. Helvering, 290 U.S. 111, 115 (1933).     Accordingly, petitioner

bears the burden of proving that respondent’s determination in

the notice of deficiency is erroneous.     See Rule 142(a); Welch v.

Helvering, supra at 115.

Taxation of Alimony

     An individual may deduct from his or her income the payments

he or she made during a taxable year for alimony or separate

maintenance.   Sec. 215(a).   Conversely, the recipient of alimony
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or separate maintenance payments must include those payments when

calculating his or her gross income.   Sec. 61(a)(8).

     Section 71(b)(1) defines “alimony or separate maintenance

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

     Any portion of a payment that fails to meet any one of the

four provisions “(A) through (D) as enumerated in section 71” is

not alimony and accordingly, is not deductible by petitioner.

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

published opinion 139 F.3d 907 (9th Cir. 1998).

     Section 71(b)(2) defines a “divorce or separation

instrument” as:

          (A) a decree of divorce or separate maintenance or a
     written instrument incident to such a decree,

          (B) a written separation agreement, or
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           (C) a decree (not described in subparagraph (A))
      requiring a spouse to make payments for the support or
      maintenance of the other spouse.

Characterization of Attorney’s Fees Payment

      Petitioner argues that he is entitled to an alimony

deduction for the $7,500 paid as attorney’s fees to Ms. Salesky’s

counsel because the payment satisfies the requirements of section

71.   Respondent concedes that while the payment does meet section

71(b)(1)(A) through (C), it fails to satisfy section 71(b)(1)(D)

because petitioner would have remained liable to pay the fees in

the event of Ms. Salesky’s death.

      The order directing petitioner to pay Ms. Salesky’s

attorney’s fees did not provide whether petitioner’s

responsibility to make the payment would terminate in the event

of Ms. Salesky’s death.   When an order does not specify whether

an obligation to make such a payment would cease upon the death

of the payee spouse, the Court must turn to the applicable State

law to resolve whether the death of a payee spouse would

terminate the obligation imposed by the order.   Kean v.

Commissioner, 407 F.3d 186, 191 (3d Cir. 2005) (interpreting New

Jersey law and quoting I.R.S. Notice 87-9, 1987-1 C.B. 422 (“The

termination of liability need * * * not be expressly stated in

the instrument [if] * * * the termination would occur by

operation of State law.”)), affg. T.C. Memo. 2003-163.
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     New Jersey State law is clear that a spouse’s obligation

pursuant to a divorce or separation instrument to pay attorney’s

fees will survive the death of an ex-spouse.    Williams v.

Williams, 59 N.J. 229 (1971).   The court in Williams concluded

that although “counsel fees and costs are awarded to the

litigant, they properly ‘belong’ to counsel”.    Id. at 234.

Therefore, an attorney has a vested interest in the receipt of

fees and costs from the payor spouse irrespective of whether or

not the payee spouse dies before entry of a final divorce decree.

     Furthermore, this Court has consistently held that when

State law provides that a spouse’s obligation to pay attorney’s

fees survives the death of the payee spouse, and the divorce or

separation agreement is otherwise silent, then payment of

attorney’s fees and costs will not constitute alimony pursuant to

section 71(b).   See, e.g., Zinsmeister v. Commissioner, T.C.

Memo. 2000-364, affd. 21 Fed. Appx. 529 (8th Cir. 2001); Smith v.

Commissioner, T.C. Memo. 1998-166; Ribera v. Commissioner, T.C.

Memo. 1997-38.   Accordingly, because petitioner was liable to

pay, and in fact, did pay, $7,500 as and for Ms. Salesky’s

attorney’s fees, and because petitioner would have been liable to

pay the fees even in the event of Ms. Salesky’s death, the

payment cannot be alimony pursuant to section 71, nor can

petitioner take a deduction for the payment under section 215(a).
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     Finally, it is of no legal consequence that petitioner

satisfied his obligation to pay Ms. Salesky’s attorney’s fees

while she was still alive, or that she was alive at the time the

underlying petition was filed.    The dispositive question is

whether or not petitioner would have remained under an obligation

to pay the fees had Ms. Salesky died.

     Clearly, under New Jersey law, petitioner would be liable to

pay the attorney’s fees.   Since we have already determined that

petitioner would have been obligated to pay the fees,

petitioner’s argument that the payment should be categorized as

alimony because Ms. Salesky was still alive at the time it was

made is without merit and will not be afforded further

consideration.

     Reviewed and adopted as the report of the Small Tax Case

Division.


                                           Decision will be entered

                                      for respondent.
