                   T.C. Summary Opinion 2009-7



                     UNITED STATES TAX COURT



               JORDAN LEE SCHWENING, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 27056-07S.              Filed January 8, 2009.



     Jordan Lee Schwening, pro se.

     Douglas S. Polsky, for respondent.



     ARMEN, 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.1    Pursuant to section

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


     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for 2004,
the taxable year at issue, and all Rule references are to the Tax
Court Rules of Practice and Procedure.
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other court, and this opinion shall not be treated as precedent

for any other case.

     Respondent determined a deficiency of $2,900 in petitioner’s

Federal income tax for 2004.    The sole question presented for

decision is whether payments petitioner made to his ex-wife met

the definition of “alimony” under the Internal Revenue Code.

Because we are required to hold that those payments were not

alimony, we must sustain respondent’s determination.

                             Background

     Some of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     At the time the petition was filed, Jordan Lee Schwening

(petitioner) resided in the State of Kansas.

     The marriage between petitioner and his ex-wife was

dissolved in 2001 by a State court in Colorado.      Pursuant to that

court’s Stipulated Final Orders (final orders), petitioner was to

pay his ex-wife “the amount of $1,700 per month as and for family

maintenance.”   The payments were to “be made for six years from

April 1, 2001, and    * * * [are] non-modifiable.”   The final

orders further explained that “if [minor child] is still in his

minority at the end of the said six-year period of non-modifiable

maintenance, the parties shall agree to an amount of child

support for that child.”
                                - 3 -

     In 2004, petitioner paid his ex-wife $11,200 pursuant to the

final orders, and he deducted that amount as alimony on his

Federal income tax return.2

     Respondent disallowed the claimed deduction because the

payments did not meet the requirements for an alimony deduction

under section 71.

                              Discussion3

     Section 71(a) provides the general rule that alimony

payments are included in the gross income of the payee spouse;

section 215(a) provides the complementary general rule that

alimony payments are tax deductible by the payor spouse in “an

amount equal to the alimony or separate maintenance payments paid

during such individual’s taxable year.”

     The term “alimony” means any amount received as alimony or

separate maintenance payments as defined in section 71, the

relevant provision of which explains:

          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--




     2
        Because of some difficult economic circumstances,
petitioner was unable to pay his ex-wife the full amount of
$20,400 due at that time.
     3
        The issue for decision is essentially legal in nature;
accordingly, we decide it without regard to the burden of proof.
                               - 4 -

                     (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

                     (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.

     Both parties agree that petitioner’s payments to his ex-wife

satisfied the requirements set out in section 71(b)(1)(A), (B),

and (C).   The parties do not agree, however, whether the

requirement to make payments would have terminated in the event

of petitioner’s ex-wife’s death.   See sec. 71(b)(1)(D).

     Although section 71(b)(1)(D) originally required that a

divorce or separation instrument affirmatively state that

liability for payments terminate upon the death of the payee

spouse in order to be considered alimony, the statute was

retroactively amended in 1986 so that such payments now qualify

as alimony as long as termination of such liability would occur

upon the death of the payee spouse by operation of State law.
                               - 5 -

Hoover v. Commissioner, 102 F.3d 842, 845-846 (6th Cir. 1996),

affg. T.C. Memo. 1995-183.   If the payor is liable for any

qualifying payment after the recipient’s death, none of the

related payments required will be deductible as alimony by the

payor.   See Kean v. Commissioner, 407 F.3d 186, 191 (3d Cir.

2005), affg. T.C. Memo. 2003-163.

     Here, the final orders do not provide any conditions for the

termination of the payments to petitioner’s ex-wife other than

the operation of time and a minor child reaching the age of

majority; some courts have held that “payments are not considered

alimony to the extent that the divorce or separation instrument

fixes a sum of money as child support, or provides that the

payments are reduced on the happening of an event related to the

child, or at a time associated with such an event.”    Kean v.

Commissioner, supra at 192 (Emphasis in original).

     Because the final orders do not expressly provide for the

termination of petitioner’s payments in the event of his ex-

wife’s death, we look to Colorado State law to resolve the issue.

See Morgan v. Commissioner, 309 U.S. 78, 80-81 (1940); see also,

e.g., Kean v. Commissioner, supra at 191; Sampson v.

Commissioner, 81 T.C. 614, 618 (1983), affd. without published

opinion 829 F.2d 39 (6th Cir. 1987); Berry v. Commissioner, T.C.

Memo. 2000-373 (stating:   “Although Federal law controls in

determining [the taxpayer’s] income tax liability * * *, State
                               - 6 -

law is necessarily implicated in the inquiry inasmuch as the

nature of [the payor’s] liability for the payment” was based in

State law), affd. 36 Fed. Appx. 400 (10th Cir. 2002).

     Petitioner contends that the intent of the final orders was

both to provide for the deductibility of his payments and to

comply with Colo. Rev. Stat. 14-10-122(2) (2008), the Colorado

rule clarifying that the obligation to pay future maintenance

terminates on the death of either party.   Petitioner testified

that his ex-wife also agreed that the payments made to her would

be deductible to him.   However, Colo. Rev. Stat. 14-10-122(2)

speaks to “future maintenance”, not “family maintenance”, and it

is the latter that is the relevant term in the final orders.

Further, because the final orders’ provision clearly deals with,

at least in part, child support, we are unable to ascertain what

portion of petitioner’s payments might have been for spousal

support and what portion was intended to provide support of the

couple’s children.   Compare sec. 71(c) (explaining that child

support is not “alimony”) and Colo. Rev. Stat. 14-10-122(3)

(explaining that child support payments do not terminate upon the

death of a parent obligated to support the child); See also Colo.

Rev. Stat. 14-10-122(2).

     What we can ascertain is that the final orders contain a

provision that calls for petitioner to provide unallocated

support through monthly payments to his ex-wife.   Thus, if the
                               - 7 -

unallocated support payments would terminate upon petitioner’s

ex-wife’s death, petitioner’s payments would be considered

alimony.   If not, then we must sustain respondent’s

determination.

     Petitioner argues that any portion of the payments providing

for child support would terminate in the event of his ex-wife’s

death because petitioner would then become the custodial parent.

Unfortunately, as logical as that argument might seem, the law

does not operate that way.   Child support is expressly not

“alimony”.   Sec. 71(c).

     The Court of Appeals for the Tenth Circuit has explained

that, under Colorado law, unallocated payments of temporary

maintenance and child support do not terminate upon the death of

the payee spouse and are thus not deductible as “alimony”.

Lovejoy v. Commissioner, 293 F.3d 1208, 1211 (10th Cir. 2002),

affg. Miller v. Commissioner, T.C. Memo. 1999-273.     In the

absence of a different interpretation from the Colorado Supreme

Court, Lovejoy is both controlling and on point.
                              - 8 -

     For the reasons discussed above, we sustain respondent’s

determination that petitioner’s payments made to his ex-wife in

2004 did not satisfy the statutory requirements of section 71,

and, accordingly,



                                        Decision will be entered

                                   for respondent.
