                       T.C. Memo. 1998-331



                     UNITED STATES TAX COURT



                 FRANCES J. RYAN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent

         W. GREGORY AND PATRICIA L. RYAN, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 461-96, 1274-96.         Filed September 21, 1998.



     Ross F. Stancati, for petitioner in docket No. 461-96.

     Daniel P. McGlinn, Russell A. Kreis, and Matthew S. DePerno,

for petitioners in docket No. 1274-96.

     Alexandra E. Nicholaides, for respondent.


             MEMORANDUM FINDINGS OF FACT AND OPINION

     DEAN, Special Trial Judge:     These cases were heard pursuant

to section 7443A(b)(3) and Rules 180, 181, and 182.1     These

     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code in effect for the years at issue, and Rule
                                                   (continued...)
                                - 2 -


cases were consolidated on August 20, 1997, for purposes of

trial, briefing, and opinion.

     Respondent determined deficiencies in Frances J. Ryan's

Federal income taxes for 1991, 1992, and 1993 in the amounts of

$1,950, $1,950, and $1,950, respectively.    Respondent determined

a deficiency in Gregory Ryan's Federal income tax for 1991 in the

amount of $4,030.   Respondent determined deficiencies in Gregory

and Patricia Ryan's Federal income taxes for 1992 and 1993 in the

amounts of $3,954 and $4,019, respectively.

     The issue for decision is whether the $13,000 paid by

Gregory Ryan to his former wife, Frances Ryan, during each of the

taxable years in issue is alimony.

     Some of the facts have been stipulated and are so found.

The stipulation of facts and the attached exhibits are

incorporated herein by reference.    Frances Ryan resided in

Charlotte, North Carolina, at the time her petition was filed.

Gregory Ryan and his wife, Patricia Ryan, resided in Schofield,

Wisconsin, at the time their petition was filed.

                         FINDINGS OF FACT

     On December 29, 1989, after a trial, Gregory and Frances

Ryan were granted a divorce by the Circuit Court for the County

of Kalamazoo, Michigan (trial court).    The Judgment of Divorce


     1
      (...continued)
references are to the Tax Court Rules of Practice and Procedure.
                              - 3 -


issued by the trial court provided for permanent alimony payable

to Frances Ryan as follows:

          IT IS FURTHER ORDERED AND ADJUDGED that the
     Plaintiff, W. GREGORY RYAN, shall pay to the Defendant,
     FRANCES RYAN, for her support and maintenance, the sum
     of SEVEN HUNDRED ($700.00) DOLLARS per month, in
     advance, commencing January 5, 1990, for January,
     February, March and April of 1990, and commencing
     May 5, 1990, the sum of TWO HUNDRED FIFTY ($250.00)
     DOLLARS PER WEEK, and continuing thereafter until the
     death or substantial change in circumstances, or until
     further order of this Court having competent
     jurisdiction. This alimony shall be paid through the
     Friend of the Court consistent with the provisions
     hereinafter found dealing with payment of support.

     In 1991, Gregory Ryan appealed the Judgment of Divorce to

the Michigan Court of Appeals (court of appeals) on the grounds

that the alimony granted by the trial court was in excess of the

alimony requested by Frances Ryan.    In the divorce proceedings,

Frances Ryan had asked for alimony for a term of 8 years, yet the

Judgment of Divorce provided alimony until Frances Ryan's death

or a substantial change in circumstances.

     The court of appeals rendered a per curiam opinion dated

May 8, 1991, finding that the trial court's alimony award was

improper and remanded the matter to the trial court "for

modification of the divorce judgment to reflect an alimony award

of $250 a week for eight years."

     At trial and in the stipulation of facts, Gregory and

Patricia Ryan objected to the admission into evidence of the

court of appeals opinion on the grounds of hearsay, relevance,
                               - 4 -


and the best evidence rule.   The best evidence objection was made

because the document submitted was a photocopy, not a certified

copy of the opinion.   Rule 1002 of the Federal Rules of Evidence

provides:

          To prove the content of a writing, recording, or
     photograph, the original writing, recording, or
     photograph is required, except as otherwise provided in
     these rules or by Act of Congress.

Rule 1005 of the Federal Rules of Evidence further provides:

          The contents of an official record, or of a
     document authorized to be recorded or filed and
     actually recorded or filed, including data compilations
     in any form, if otherwise admissible, may be proved by
     copy, certified as correct in accordance with rule 902
     or testified to be correct by a witness who has
     compared it with the original. If a copy which
     complies with the foregoing cannot be obtained by the
     exercise of reasonable diligence, then other evidence
     of the contents may be given.

See Fed. R. Evid. 902(4).

     Respondent subsequently substituted for the photocopy of the

court of appeals opinion a certified copy of the opinion as

required by rules 1005 and 902 of the Federal Rules of Evidence.

We therefore overrule Gregory and Patricia Ryan's objection based

on the best evidence rule.

     We also overrule their hearsay and relevance objections.   On

the basis of rule 201(b) of the Federal Rules of Evidence, we

find that the opinion may be admitted under the doctrine of

judicial notice.   A court may take notice of another court's

order for the limited purpose of recognizing the judicial act
                                 - 5 -


that the order represents or the subject matter of the

litigation.     United States v. Jones, 29 F.3d 1549, 1553 (11th

Cir. 1994); see United States v. Garland, 991 F.2d 328, 332 (6th

Cir. 1993).   "The law of any state of the Union, whether

depending upon statutes or upon judicial opinions, is a matter of

which the courts of the United States are bound to take judicial

notice, without plea or proof."     Lamar v. Micou, 114 U.S. 218,

223 (1885); see Toney v. Burris, 829 F.2d 622, 626-627 (7th Cir.

1987).   In the present cases, we take judicial notice of the

court of appeals opinion not for the truth of the facts contained

therein, but for establishing that the court of appeals did in

fact render such an opinion on the issue of Frances and Gregory

Ryan's alimony provisions.    It is clearly relevant for that

purpose.    The court of appeals opinion is therefore admitted into

evidence.

     Gregory Ryan subsequently filed a motion for clarification

with the court of appeals, which was dismissed because it was not

timely filed.    The trial court did not amend the Judgment of

Divorce pursuant to the court of appeals opinion.

     Frances Ryan did not include payments from Gregory Ryan in

1991, 1992, and 1993 as income.    Although she did not testify at

trial, the record reflects that she treated the court of appeals

opinion as having specifically removed the termination upon death

provision contained in the original Judgment of Divorce.    Gregory
                                - 6 -


Ryan, on the other hand, treated the payments as though a

termination upon death provision was still in effect and the

payments were alimony for a term of 8 years.

                               OPINION

     Petitioners complain that respondent has taken inconsistent

positions in issuing separate statutory notices of deficiency to

both Gregory and Patricia Ryan, and to Frances Ryan.   It is

immaterial whether the alternative claims were contained in a

single notice of deficiency or in separate notices.    Doggett v.

Commissioner, 66 T.C. 101, 103 (1976).    Separate determinations

against each of the former spouses for the same tax liability

intended to protect the revenue in a "whipsaw" situation do not

negate the presumption of correctness as to either notice.      Smith

v. Commissioner, T.C. Memo. 1996-292; INI, Inc. v. Commissioner,

T.C. Memo. 1995-112, affd. without published opinion 107 F.3d 27

(11th Cir. 1997).

     Gross income includes amounts received as alimony.   Secs.

71(a), 61(a)(8).    If alimony is includable in the payee spouse's

gross income under section 71(a), the payor spouse is allowed to

deduct the amount of the alimony paid.   Sec. 215(a) and (b).    For

purposes of being included in gross income, alimony is defined by

section 71(b)(1) as any cash payment meeting the following four

criteria:

          (A) such payment is received by (or on behalf of)
     a spouse under a divorce or separation instrument,
                                - 7 -


          (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.

Sec. 71(b)(1)(A)-(D).    Accordingly, if any portion of the

payments made by Gregory Ryan fails to meet any of the four

enumerated criteria, that portion is not alimony and is not

deductible.

     Frances Ryan first argues that Gregory Ryan's payments do

not satisfy the requirement of section 71(b)(1)(A), which

provides that payments must be received under a divorce or

separation instrument.    She contends that the court of appeals

opinion effectively revoked all language in the Judgment of

Divorce as to how long and the conditions under which Gregory

Ryan's payments were to be made.    She argues that no order for

payment of alimony existed at all after May 1991.

     Michigan Court Rule 7.215(D) provides that an "opinion or

order is notice of the entry of judgment of the Court of

Appeals".   The opinion becomes final after the time for appealing

to the Michigan Supreme Court has expired.    Mich. Ct. R.
                                - 8 -


7.215(E).    The original divorce decree as modified by opinion

rendered by the court of appeals limiting alimony to a term of 8

years is an order sufficient to satisfy the requirement of

section 71(b)(1)(A).    The court of appeals remanded the matter to

the trial court for a specific "modification of the divorce

judgment".    It was not a revocation of the divorce judgment.    We

find therefore, that an order for payment was in existence during

the taxable years in issue and meets the requirements of section

71(b)(1)(A).

     Frances Ryan also argues that Gregory Ryan's payments fail

the fourth requirement of section 71(b)(1), which provides that

the alimony obligation must terminate upon the payee's death.

Section 71(b)(1)(D), however, does not require that the

termination upon death provision be in writing in the divorce

instrument; alimony may terminate as a matter of State law upon

death of the payee spouse.    See Cunningham v. Commissioner, T.C.

Memo. 1994-474.

     Under Michigan State law, in the absence of a written

provision in the judgment of divorce to the contrary, alimony

terminates upon the death of the payee spouse.    Couzens v.

Couzens, 364 N.W.2d 340 (Mich. Ct. App. 1985).    Thus, by reason

of the express language in the divorce decree and as a matter of

State law, it is clear that payments ordered in the Judgment of
                               - 9 -


Divorce were alimony before the court of appeals rendered its

opinion in 1991.

     It is less clear, however, whether the payments are alimony

after the court of appeals remanded the case to the trial court.

If the effect of the court of appeals opinion was to specifically

remove the termination upon death language in the Judgment of

Divorce, the payments made by Gregory Ryan to Frances Ryan may

not be alimony under Michigan State law.   If, however, the court

of appeals opinion modified the Judgment of Divorce, yet left the

termination upon death provision intact, the payments clearly are

alimony.

     The court of appeals opinion states in pertinent part:

     the trial court ordered that defendant be paid alimony
     until death or changed circumstances. We note that
     defendant requested only an eight-year alimony award.
     In light of defendant's testimony that she would
     require alimony for eight years, we find the trial
     court's order of permanent alimony improper.
     Accordingly, we remand for modification of the divorce
     judgment to reflect an alimony award of $250 a week for
     eight years.

     In light of the language contained in the court of appeals

opinion, we find that the termination upon death provision

contained in the Judgment of Divorce was not modified by the

higher court's opinion.   The issue raised in the appeal was the

length of the alimony payments, not whether the payments were in

fact alimony.   We conclude that the original nature of the

payments was not changed; instead, the payments were merely
                               - 10 -


limited to no more than 8 years rather than continued

indefinitely until death or a change in circumstances.    This is

consistent with the court of appeals' use of the terms "permanent

alimony" and "alimony for eight years".

     Furthermore, the court of appeals refers to the 8 years of

payments as "alimony" in several places throughout the opinion.

We presume the court of appeals uses words of appropriate legal

meaning.   We do not believe the court of appeals would use the

word "alimony" when referring to the payments made from Gregory

Ryan to Frances Ryan if it did not intend for the termination

upon death language to remain part of the final judgment of

divorce.

     Alimony is defined under Michigan State law as payments

which:    (1) Qualify as "alimony or separate maintenance" pursuant

to section 71(b); and (2) terminate upon the death of the payee

spouse.    See Couzens v. Couzens, supra.   By using the word

"alimony" in its opinion, we believe the court of appeals

intended for the payments to satisfy the requirements for alimony

under Michigan State law.   To read anything else into the court

of appeals opinion would be presumptuous and inconsistent with

the plain language of the opinion.

     Gregory and Patricia Ryan in their reply brief requested

that the Court order that respondent pay them $15,000 toward

their costs and attorney's fees.   Rule 231 provides that any
                              - 11 -


claim for reasonable litigation or administrative costs must be

made by motion, fulfilling specific requirements, and filed

within 30 days after service of a written opinion resolving the

issues in the case.   We therefore decline to address their

request unless or until such a motion is filed.

     To reflect the foregoing,

                                         Decisions will be entered

                                    for petitioners in docket No.

                                    1274-96 and for respondent in

                                    docket No. 461-96.
