                         T.C. Memo. 2008-183



                       UNITED STATES TAX COURT



                STEVEN AND VAN LE, Petitioners v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 22413-06.              Filed July 30, 2008.



     Steven and Van Le, pro sese.

     Douglas S. Polsky and Dennis R. Onnen, for respondent.



             MEMORANDUM FINDINGS OF FACT AND OPINION


     VASQUEZ, Judge:    Respondent determined a $1,768 deficiency

in petitioners’ 2004 Federal income tax.   The issue for decision

is whether petitioners are entitled to a $6,022 deduction for

alimony paid for the year 2004.
                                 -2-

                           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.    At the time they filed

the petition, petitioners resided in New Mexico.

     On November 1, 1999, Steve Le (petitioner) and Tran Le (Ms.

Le) filed for divorce in the District Court of Sedgwick County,

Kansas (district court).    The district court issued temporary

orders which ordered that petitioner pay spousal maintenance to

Ms. Le during the pendency of the divorce proceedings.    On

September 27, 2000, petitioner and Ms. Le divorced pursuant to

the Journal Entry of Judgment and Decree of Divorce (divorce

decree) dated September 27, 2000, and filed December 7, 2000.

The divorce decree provided, in part, as follows:

          IT IS FURTHER ORDERED as and for spousal
     maintenance that the Petitioner [Ms. Le, also known as
     Tran B. Tran] shall have a judgment against the
     Respondent [petitioner, also known as Phong Le] for
     unpaid spousal maintenance ordered pursuant to the
     Temporary Order in the amount of $12,000. Said spousal
     maintenance shall be taxable income to petitioner and
     shall be deductible on respondent’s income tax return.
     The respondent shall have thirty (30) days to choose
     how to satisfy said judgment by payment or by causing
     funds to be distributed from his Rockwell Collins
     401(k) Retirement Plan. Respondent shall be allowed to
     do so and said $12,000 shall be awarded to petitioner
     from respondent’s 401(k) plan as part of the property
     division and not as support. Petitioner shall be
     responsible for all income tax consequences on said
     amount in the event respondent chooses to satisfy said
     judgment by and through the 401(k) plan. The transfer
     of said funds to petitioner shall be made by Qualified
     Domestic Relations Order to be prepared by respondent’s
                                -3-

     counsel. The court shall retain jurisdiction to assist
     the parties in carrying out the intent of this order.
     If payment is not made within thirty (30) days from the
     date of filing this order, the petitioner shall be free
     to execute on the judgment, as provided by law.

          IT IS FURTHER ORDERED the Respondent shall have no
     further obligation to pay spousal maintenance to the
     Petitioner other than the judgment described above.

     Pursuant to an income withholding order issued by the

district court in 2001, petitioner made payments for past due

support to Ms. Le through the “Kansas Payment Center” (as ordered

by the district court) in 2001, 2003, and 2004 in the amounts of

$4,050, $4,500, and $6,323, respectively.1   Respondent issued a

notice of deficiency to petitioners for 2004 determining a

deficiency after disallowing a $6,022 alimony deduction.2

                              OPINION

     Section 215(a)3 provides that an individual is allowed a

deduction for alimony or separate maintenance payments paid

during the taxable year.   For purposes of defining “alimony or

separate maintenance payment”, section 215(b) cross-references

section 71(b).   The parties agree petitioner’s payment to Ms. Le

satisfy the requirements of section 71(b)(1)(A), (B), and (C).


     1
        Amounts are rounded to the nearest dollar. In 2004 the
district court modified the income withholding order to terminate
the income withholding.
     2
        Petitioner paid $6,323 to Ms. Le in 2004, but petitioner
claimed $6,022 as an alimony deduction.
     3
        All section references are to the Internal Revenue Code
in effect for the year in issue, and all Rule references are to
the Tax Court Rules of Practice and Procedure.
                                  -4-

Section 71(b)(1)(D) requires that “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.”

     The Court first reviews the divorce documents to determine

whether a payor spouse satisfies section 71(b)(1)(D).     Okerson v.

Commissioner, 123 T.C. 258, 264 (2004).    The Court looks to

applicable State law if the divorce documents are inconclusive.

Gilbert v. Commissioner, T.C. Memo. 2003-92, affd. sub nom.

Hawley v. Commissioner, 94 Fed. Appx. 126 (3d Cir. 2004).

     The parties agree that petitioner was ordered to pay $12,000

of spousal support pursuant to the temporary orders issued by the

district court.   Petitioner was in arrears on the $12,000 of

spousal support due under the temporary orders when the district

court issued the divorce decree.    The divorce decree was silent

as to whether the liability for the $12,000 of spousal support

would terminate on the death of the payor or payee.    Therefore,

the Court must look to Kansas law.

     In Kansas “temporary maintenance ceases when the divorce

action terminates”.     In re Marriage of Vientos, 139 P.3d 152

(Kan. Ct. App. 2006).    A divorce action is “purely personal and

ends on the death of either spouse.”     Wear v. Mizell, 946 P.2d

1363, 1367 (Kan. 1997).    In cases where the payor spouse is in
                                 -5-

arrears on support payments but then later pays the amount in

arrears, “the payment retains the characteristics of the original

payments for which it is substituted”.      Davis v. Commissioner, 41

T.C. 815, 820 (1964); see also Stroud v. Commissioner, T.C. Memo.

1993-317.

     The $12,000 of spousal support was temporary maintenance.

Accordingly, under Kansas law the liability to make such payments

would have ceased on either petitioner’s or Ms. Le’s death

because the divorce proceeding would have automatically

terminated, ending the operation of the temporary orders.

Therefore $3,450 of the payments petitioner made to Ms. Le in

2004, which satisfied in full the $12,000 of spousal support,4 is

deductible as alimony in 2004.

     In reaching all of our holdings herein, we have considered

all arguments made by the parties, and to the extent not

mentioned above, we conclude they are irrelevant or without

merit.

     To reflect the foregoing,


                                            Decision will be entered

                                       under Rule 155.



     4
        Petitioner paid $4,050 and $4,500 of the $12,000 of
spousal support in 2001 and 2003, respectively. Accordingly,
only $3,450 of the $12,000 of spousal support remained
outstanding ($12,000 minus $4,050 minus $4,500 equals $3,450).
