                  T.C. Summary Opinion 2007-136



                      UNITED STATES TAX COURT



               RANDALL L. SINDELIR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8048-06S.                 Filed August 6, 2007.


     Randall L. Sindelir, pro se.

     Tamara L. Kotzker, 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

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

for any other case.


     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for 2002.
                                 - 2 -

     Respondent determined a deficiency in petitioner’s Federal

income tax for 2002 of $6,704.    The deficiency stemmed from the

disallowance of a deduction for alimony payments and the related

adjustment of petitioner’s itemized deductions.       The sole issue

for decision is whether petitioner properly deducted $18,000 paid

to his ex-wife in 2002 as alimony.       For the reasons discussed

below, we 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, Randall L. Sindelir

(petitioner) resided in Montana.

     Petitioner and his former spouse, Diana Sindelir (ex-wife),

were married in February 1978.    After separating sometime in late

2001, they filed a joint petition for the dissolution of their

marriage in January 2002.2   When the couple separated, they had

an oral agreement that petitioner would pay his ex-wife $1,500

per month in temporary maintenance.       Petitioner did so.

     In August 2002, the couple engaged in court-ordered

mediation as part of the divorce proceedings.       At the mediation,

a written separation agreement was drafted, stating that


     2
        As the couple was living in Colorado at the time, the
separation and divorce proceedings were supervised by the
District Court for Larimer County.
                               - 3 -

petitioner was to pay his ex-wife $2,000 per month in

maintenance.   This separation agreement was never signed or

executed by the parties, and petitioner continued to pay his ex-

wife $1,500 per month.

     The divorce became final in January 2003.   In considering

maintenance obligations, the District Court for Larimer County

refused to enforce the draft separation agreement.   Petitioner

argued during the course of the final divorce proceeding that the

separation agreement was not binding.   The court agreed with

petitioner and found that although an agreement between

petitioner and his ex-wife may have been reduced to writing, it

was not enforceable as it was not signed or executed by the

parties.

     Petitioner claimed an alimony deduction in the amount of

$18,000 for the amounts he paid to his ex-wife in 2002.3

Respondent disallowed the deduction, and a deficiency resulted.




     3
        Petitioner wrote checks to his ex-wife totaling
$15,440.88 in 2002, testifying at trial that the difference
between the amount claimed and the checks written was for
expenses paid on her behalf. As we ultimately hold that the
entire $18,000 is not deductible as alimony, we need not decide
whether petitioner properly substantiated the additional amounts
paid.
                              - 4 -

                           Discussion4

     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 alimony as defined in section

71, which provides in relevant part:

          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--

                    (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



     4
        The issue for decision under these facts is essentially
legal in nature; therefore, we decide the instant case without
regard to the burden of proof.
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                    (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.

     The issue here is solely whether petitioner’s payments to

his ex-wife in 2002 satisfied the requirement that the payments

be made under a divorce or separation instrument.   See sec.

71(b)(1)(A).

     Section 71(b)(2) provides that a “divorce or separation

instrument” means:

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

               (B) a written separation agreement, or

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

Although petitioner and his ex-wife had an oral agreement, no

written agreement or decree was in effect for the taxable year at

issue.

     Courts have leniently interpreted the writing requirement.

See, e.g., Leventhal v. Commissioner, T.C. Memo. 2000-92 (finding

that letters signed by both the taxpayer’s attorney and the ex-

wife’s attorney clearly setting forth the terms of maintenance

payments was a “separation agreement”); Osterbauer v.

Commissioner, T.C. Memo. 1982-266 (determining that a letter sent
                                - 6 -

by the wife’s representative to the taxpayer memorializing the

terms of their oral agreement constituted a written instrument).

But courts have also routinely held that there must be some

actual writing in effect.    See, e.g., Herring v. Commissioner, 66

T.C. 308, 311 (1976) (holding that payments made under an oral

agreement were not alimony).    The draft settlement agreement was

never in effect, and the fact that petitioner’s ex-wife

acknowledges receiving the payments made by petitioner does not

satisfy the writing requirement.    See, e.g., Leventhal v.

Commissioner, supra.

     Although we appreciate the difficult position that

petitioner has found himself in, particularly since it seems

clear that the intention of the oral agreement in effect between

petitioner and his ex-wife had been to have the $1,500 monthly

payments serve as “alimony”, deductions are a matter of

legislative grace and must meet all applicable statutory

requirements.    INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84

(1992).   To be deductible as alimony under section 71, a payment

must be made pursuant to some kind of written agreement, and the

oral agreement in effect here is insufficient to satisfy that

requirement.    See sec. 71(b)(1)(A).   Accordingly, we hold that

petitioner’s payments made to his ex-wife in 2002 were not

properly deductible as alimony.
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To reflect our disposition of the disputed issue,



                                   Decision will be entered

                              for respondent.
