                               T.C. Memo. 2012-348



                         UNITED STATES TAX COURT



                      ATEF SA’D, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 19061-06.                         Filed December 18, 2012.


      Harvey J. Waller, for petitioner.

      Julie A. Jebe, for respondent.



            MEMORANDUM FINDINGS OF FACT AND OPINION


      GALE, Judge: Respondent determined a deficiency of $101,836 and an

accuracy-related penalty under section 6662(a) of $20,367 with respect to

petitioner’s Federal income tax for the 2001 taxable year.1



      1
        All section references are to the Internal Revenue Code of 1986, as in effect
for the year at issue. All dollar amounts are rounded to the nearest dollar.
                                             -2-

[*2] Following concessions by both parties,2 the issues for decision are whether

petitioner is allowed to deduct the following payments that he made from the bank

accounts of his wholly owned subchapter S corporation (S corporation): (1) a

lump-sum payment of $160,000 to his former spouse; (2) periodic payments to his

former spouse totaling $61,574; (3) a payment of $69,000 made to attorneys who

represented his former spouse in their divorce action; (4) payments totaling $5,384

that he contends were for medical expenses of his children; and (5) whether

petitioner is liable for an accuracy-related penalty under section 6662(a).

                                  FINDINGS OF FACT

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

in Illinois at the time he filed his petition.

       During 2001 petitioner was the president and sole shareholder of Action

Mortgage, Inc. (Action Mortgage), an S corporation. Petitioner was married in

1984 to Mildred Sa’d (Mrs. Sa’d). In 1999 Mrs. Sa’d commenced a divorce action


       2
       Petitioner concedes that various deductions were erroneously claimed by
his S corporation for the year at issue but contends that he is entitled to deduct
those amounts either as alimony or under other sections. Respondent concedes that
the amount of the S corporation’s medical expenses disallowed in the notice of
deficiency ($5,834) was erroneous in that only $5,384 of such expenses was
claimed. Respondent accordingly concedes that the disallowance was overstated
by $450. The notice of deficiency also made certain computational adjustments to
the amounts claimed on petitioner’s return for itemized deductions and the
personal exemption.
                                            -3-

[*3] in an Illinois State court against petitioner. On December 20, 1999, Mrs. Sa’d

filed an emergency petition for a temporary restraining order in the divorce action.

Therein, she sought, inter alia, that petitioner be enjoined from making withdrawals

from Action Mortgage’s bank accounts, that her name be added to the accounts,

and that her signature be required for any withdrawals from the accounts, including

withdrawals in the ordinary course of business. In an attached affidavit Mrs. Sa’d

affirmed that Action Mortgage had been “started with marital funds” and that while

she had worked there once, she had not done so, nor been allowed on the premises

by petitioner, for the past three years.3

      The State court temporarily prohibited all withdrawals by petitioner, but on

December 28, 1999, the court issued an order allowing petitioner to make

withdrawals in the ordinary conduct of Action Mortgage’s business provided Mrs.

Sa’d was notified daily4 and allowing each spouse to make withdrawals of $5,000

per month from the Action Mortgage bank accounts to cover his or her expenses.

On November 13, 2000, upon Mrs. Sa’d’s motion, the State court issued an order


      3
       Mrs. Sa’d also affirmed that her name had been on the Action Mortgage
bank accounts and that petitioner had assumed control of the accounts and removed
her name from them.
      4
       The State court did not grant Mrs. Sa’d’s request that her name be placed on
the Action Mortgage bank accounts or that her signature be required on checks
drawn on the accounts.
                                         -4-

[*4] (interim order) which modified the monthly amounts so that “each party shall

be entitled to receive $6,000 from the corporate account of Action Mortgage Inc.

for support without prejudice to a full hearing.” The interim order made no

designation with respect to the income tax treatment of the payments. Mrs. Sa’d

received $6,000 each month from Action Mortgage’s bank accounts for the first 10

months of 2001 under the terms of the interim order. Petitioner and Mrs. Sa’d no

longer lived together at the time.

       On November 6, 2001, the State court entered a divorce judgment. The

judgment incorporated a marital settlement agreement executed by petitioner and

Mrs. Sa’d on November 1, 2001. Under article III of the marital settlement

agreement, entitled “Unallocated Maintenance and Support”, petitioner agreed to

pay Mrs. Sa’d $6,000 per month “for her unallocated maintenance and the support

of the parties’ minor children” beginning November 1, 2001. Petitioner’s

obligation was to terminate after five years or upon the death of either petitioner or

Mrs. Sa’d. The agreement also provided that the amounts paid were to be

includible in the gross income of Mrs. Sa’d and deductible from the gross income

of petitioner.

       Article V of the agreement, entitled “Medical and Related Expenses”,

required petitioner and Mrs. Sa’d each to pay half of the uninsured medical
                                          -5-

[*5] expenses of each of the couple’s children until the child completed or

discontinued a college, university, or vocational school education, or until the

child’s 23d birthday, whichever came first.

      Article X, entitled “Action Mortgage, Inc.”, provided that petitioner would

“retain as his sole and exclusive property, free of any claim by * * * [Mrs. Sa’d],

all right, title and interest in and to Action Mortgage, Inc.” Next, article XI,

entitled “Bank Accounts, Stocks, Bonds & Investment Funds”, provided in section

1 that “[u]pon the entry of a Judgment for Dissolution of Marriage”, petitioner was

to pay Mrs. Sa’d “a lump sum of one hundred sixty thousand dollars” and in

section 2 that all bank accounts in either party’s name or under his or her control

would be retained by that party. In contrast to the $6,000 per month payments for

“unallocated maintenance”, there was no provision in the agreement specifically

providing for the termination of the obligation to make the lump-sum payment

upon the death of Mrs. Sa’d.5

      5
       Article XI read in full:

      BANK ACCOUNTS, STOCKS, BONDS & INVESTMENT FUNDS

      XI.1. Upon the entry of a Judgment for Dissolution of Marriage in this
      cause now pending, ATEF shall pay to MILDRED a lump sum of one
      hundred sixty thousand dollars ($160,000).
      XI.2. All bank accounts and funds contained in such accounts, stocks,
      bonds & investment funds, now titled in the parties’ respective individual
                                                                       (continued...)
                                          -6-

[*6] The agreement also provided that each party “will assume full responsibility

for payment of his and her own, individual attorneys’ fees and costs incurred in

this action and further, each party will hold the other harmless from any liability in

connection therewith.”

      Petitioner and Mrs. Sa’d were present at a State court hearing on November

1, 2001, concerning the terms of the marital settlement agreement and other aspects

of their divorce. Petitioner’s attorney advised the court that he had explained to his

client that the $6,000 monthly payments characterized in the agreement as

unallocated maintenance and child support would be deductible by him.

Petitioner’s attorney did not discuss the tax impact of any other aspect of the

agreement at the hearing. Mrs. Sa’d’s attorney described the $160,000 lump-sum

payment as follows: “Mr. Sa’d would retain his business, Action Mortgage, along

with the remaining cash in the company after paying Mrs. Sa’d one hundred sixty

thousand dollars.” Petitioner stated at the hearing that he understood the terms of

the agreement.



      5
       (...continued)
      names, or any account under their dominion and control, shall be the
      sole and exclusive property of said party. The parties hereto further
      mutually agree to waive and release all their right, title and interest in
      and to the bank accounts, stocks, bonds & investment funds to be retained
      by the other party pursuant to the terms of this provision.
                                        -7-

[*7] For the 2001 taxable year petitioner timely filed a Form 1040, U.S.

Individual Income Tax Return, for himself and a Form 1120S, U.S. Income Tax

Return for an S Corporation, for Action Mortgage. Petitioner did not claim any

dependents on his individual return. The Schedule K-1, Shareholder’s Share of

Income, Credits, Deductions, etc., attached to the Form 1120S reported petitioner

as owning 100% of the stock of Action Mortgage throughout 2001. The Form

1120S claimed deductions of $5,384 for “Medical Expense”, $127,794 for

“Consultation expenses”, and $933,652 for “Commissions”. The amount deducted

for medical expenses was attributable to payments that petitioner contends were

made for medical care for his children. The consultation expenses deducted

included $69,000 paid to Mrs. Sa’d’s attorneys for their services in connection

with the divorce proceeding. The amounts deducted as commissions included

$73,574 in monthly payments claimed as paid to Mrs. Sa’d pursuant to the interim

order and divorce judgment and the $160,000 lump-sum payment.

      Respondent issued a notice of deficiency determining that petitioner’s

distributable share of Action Mortgage’s ordinary income required adjustment

because the following deductions claimed by Action Mortgage were not allowable:

(1) $5,384 for medical expenses; (2) $69,000 for consultation expenses; and (3)

$233,574 for commissions expenses. The adjustments increased petitioner’s
                                         -8-

[*8] distributive share from a loss of $37,373 to income of $271,035. As stated,

the notice also determined an accuracy-related penalty.

      On March 8, 2010, in response to a motion by petitioner for “clarification of

previous orders”, the State court issued an order in petitioner’s divorce case stating

that the $6,000 per month that Mrs. Sa’d received from Action Mortgage pursuant

to the interim order and the $160,000 payment to Mrs. Sa’d required in the divorce

judgment were “unallocated support payments” from petitioner to Mrs. Sa’d. The

order stated that the issue concerning the $69,000 that petitioner paid to Mrs.

Sa’d’s attorneys “is not ruled upon by this Court.”

                                      OPINION

      Petitioner has conceded that the deductions at issue were improperly claimed

as expenses of Action Mortgage on its corporate return, but he contends that he is

entitled to deduct them on his personal return as alimony or pursuant to other

Internal Revenue Code provisions.6




      6
        Respondent notes on brief that while Action Mortgage’s payment of
petitioner’s personal expenses should have resulted in a constructive dividend to
petitioner, the constructive dividend would reduce the amount of passthrough
income to petitioner from Action Mortgage by a corresponding amount. Thus,
respondent concedes, the inclusion of the constructive dividend arising from the
amounts in dispute would not have affected the deficiency determined.
                                          -9-

[*9] Overview

      Alimony payments are deductible by the payor. Sec. 215(a). Payments that

qualify as deductible are those defined as alimony in section 71(b) and thus

includible in the income of the payee. Sec. 215(b). To qualify as alimony, the

payments must be in cash and (1) made pursuant to a written divorce or separation

instrument,7 (2) not specifically designated in that instrument as a payment not

includible in gross income or allowable as a deduction, (3) made at a time when the

payor and payee are not members of the same household, and (4) not made

pursuant to a liability that would exist for any period after the death of the payee

spouse. Sec. 71(b)(1)(A)-(D). The foregoing requirements are conjunctive; a

payment is deductible alimony only if all four requirements of section 71(b)(1) are

satisfied. See Jaffe v. Commissioner, T.C. Memo. 1999-196. A payment

satisfying the preceding criteria is nevertheless treated as child support (and not

deductible) to the extent that the payment is specifically fixed in the divorce

instrument as an amount for the support of the payor’s children or subject to

reduction as a result of (or at a time clearly associated with) some contingency

related to a child of the payor spouse. Sec. 71(c).



      7
       A “divorce or separation instrument” for this purpose includes an order of
separate maintenance. Sec. 71(b)(2); sec. 1.71-1(b), Income Tax Regs.
                                         - 10 -

[*10] Lump-Sum Payment

      Respondent contends that the $160,000 lump-sum payment petitioner made

pursuant to article XI of the marital settlement agreement is not alimony because

petitioner’s liability to make the payment would not have terminated upon Mrs.

Sa’d’s death. See sec. 71(b)(1)(D).

      In determining whether a payment satisfies section 71(b)(1)(D), we examine

the divorce or separation instrument to ascertain whether it contains a condition

terminating the payor spouse’s liability on the death of the payee spouse, and, if it

does not, whether State law supplies such a condition in cases in which the

instrument is silent. See Hoover v. Commissioner, 102 F.3d 842, 847 (6th Cir.

1996), aff’g T.C. Memo. 1995-183; LaPoint v. Commissioner, T.C. Memo. 2012-

107; Sperling v. Commissioner, T.C. Memo. 2009-141; Stedman v. Commissioner,

T.C. Memo. 2008-239. Because the marital settlement agreement does not address

whether petitioner’s obligation to pay Mrs. Sa’d $160,000 would have survived her

death, we look to Illinois law to determine whether the obligation would terminate

upon the death of Mrs. Sa’d.
                                          - 11 -

[*11] Illinois law as applicable in 2001 and currently8 distinguishes between

“provisions as to property disposition” and “the obligation to pay future

maintenance.” 750 Ill. Comp. Stat. Ann. 5/510(b)-(c) (West 2009 & Supp. 2012).

Property disposition provisions cannot be revoked or modified, id. 5/510(b), while

future maintenance obligations are automatically terminated upon the death of

either party, id. 5/510(c). In making the determination whether the payment

obligation is a property disposition or a maintenance payment, “Illinois law is clear

that rules of contract construction are applicable to the interpretation of provisions

in a marital settlement agreement, and the primary objective is to effectuate the

intent of the parties.” In re Marriage of Hall, 935 N.E.2d 522, 527 (Ill. App. Ct.

2010).

         Within the category of maintenance obligations, Illinois law further

distinguishes between periodic maintenance and maintenance in gross, which is

defined as a nonmodifiable sum, the right to which is vested in the payee. In re

Marriage of Freeman, 478 N.E.2d 326, 329 (Ill. 1985). In the absence of an



         8
        Illinois’ current divorce statute, the Illinois Marriage and Dissolution of
Marriage Act, was enacted in 1977. In 1982 the statute was amended to
specifically authorize courts to award maintenance in gross. See Public Act 82-
716 sec. 1 (eff. July 1, 1982). The provisions of the statute regarding maintenance,
as amended in 1982, remained in effect at the time of the Sa’d divorce and
currently.
                                        - 12 -

[*12] explicit statement to the contrary, rights to maintenance in gross are not

affected by the death of the payee. Id. at 330.

      Respondent argues that the $160,000 payment was, on the face of the marital

settlement agreement, intended to be a part of the property settlement rather than a

support payment and was thus not terminable at death. Petitioner points to the

State court’s clarifying order issued in 2010, which characterized the sum as an

“unallocated support payment”, as evidence that the award was intended as

support. Respondent rightly notes, however, that the characterization of payments

by the Sa’ds or the State court does not determine their character for Federal

income tax purposes. Cunningham v. Commissioner, T.C. Memo. 1994-474.

      The structure and terms of the marital settlement agreement indicate that the

$160,000 payment was in the nature of a property disposition, which under Illinois

law was nonmodifiable and would survive the death of the recipient. The

provision for the payment is in article XI of the agreement entitled “Bank

Accounts, Stocks, Bonds & Investment Funds”. There is no mention of it in article

III of the agreement, entitled “Unallocated Maintenance and Support”.

      Control of the funds in Action Mortgage’s bank accounts had been a

principal focus of the Sa’ds’ dispute in the divorce action. Mrs. Sa’d successfully

moved for a temporary restraining order, averring that petitioner had assumed
                                       - 13 -

[*13] control of the Action Mortgage bank accounts and removed her name from

the accounts. The State court had issued orders limiting petitioner’s withdrawals

from the accounts to checks necessary for the ordinary conduct of Action

Mortgage’s business and for the support of petitioner and Mrs. Sa’d in prescribed

amounts.

      Against this backdrop, the relationship of the two components of article XI

becomes clear. Section 1 of article XI required petitioner’s payment of $160,000

to Mrs. Sa’d. Section 2 of article XI then provided that each spouse would retain

the funds contained in bank accounts in their respective names or under their

dominion and control. This juxtaposition strongly suggests that the payment was

consideration for Mrs. Sa’d’s relinquishment of her equitable claims to the Action

Mortgage bank accounts over which petitioner had assumed control.9 This

conclusion is confirmed by the Sa’ds’ respective counsels’ explanation of the

marital settlement agreement to the State court. At the hearing to consider

incorporation of the agreement into the divorce judgment, Mrs. Sa’d’s counsel


      9
        In her motion for a temporary restraining order, Mrs. Sa’d had averred that
Action Mortgage was founded during the marriage. Under Illinois law, the
corporation would therefore be marital property, subject to equitable division. See
750 Ill. Comp. Stat. Ann. 5/503 (West 1999 & Supp. 2012). In granting Mrs.
Sa’d’s request that petitioner’s control of Action Mortgage’s funds be restricted
during the pendency of the divorce action, the State court presumably accepted
Mrs. Sa’d’s contention that Action Mortgage was marital property.
                                        - 14 -

[*14] explained the agreement to the State court as follows: “That Mr. Sa’d would

retain his business, Action Mortgage, along with the remaining cash in the

company after paying Mrs. Sa’d one hundred sixty thousand dollars.” The

conclusion is inescapable that the payment was intended as a property disposition.

Consequently, under Illinois law petitioner’s obligation to make the payment

would have survived Mrs. Sa’d’s death.

      Even if the State court’s clarifying order issued over eight years after the

divorce judgment--to the effect that the $160,000 payment was an “unallocated

support payment” from petitioner to Mrs. Sa’d--is taken at face value, the

characterization of the payment as support would not cause petitioner’s obligation

to terminate in the event of Mrs. Sa’d’s death. The single lump-sum payment, in

which Mrs. Sa’d’s interest became vested upon the entry of the judgment of

divorce, would be classified as maintenance in gross under Illinois law. See In re

Marriage of Freeman, 478 N.E.2d at 329. As such, since the marital settlement

agreement did not provide otherwise, petitioner’s obligation to make the $160,000

payment would have survived Mrs. Sa’d’s death. See id. Consequently, the

payment is not alimony for Federal income tax purposes. See sec. 71(b)(1)(D).
                                        - 15 -

[*15] Monthly Payments

       Petitioner contends that the monthly $6,000 payments received by Mrs. Sa’d

during the first 10 months of 2001 (pursuant to the interim order) are deductible by

him as alimony.10 The payments at issue were received by Mrs. Sa’d pursuant to

the interim order, which as pertinent here provided that “each party shall be

entitled to receive $6,000 from the corporate account of Action Mortgage Inc. for

support without prejudice to a full hearing.”

       Section 71(b)(1) defines alimony as “any payment in cash” if the

requirements of subparagraphs (A) through (D) are satisfied. Respondent contends

that the amounts Mrs. Sa’d received pursuant to the interim order were not

“payments” as required by the statute because Mrs. Sa’d herself could “access” the

Action Mortgage corporate account to obtain the amount to which she was entitled

under the order. Thus, respondent contends, “no ‘payments in cash’ were

‘received’ by her in accordance with section 71(b)(1).”


       10
          In the notice of deficiency respondent allowed an alimony deduction for
 the two $6,000 monthly payments Mrs. Sa’d received in November and December
 2001 pursuant to the marital settlement agreement.
       The amount originally deducted on Action Mortgage’s return as commissions
and disallowed by respondent was $233,574. The evidence in the record establishes
that the payments Mrs. Sa’d received from Action Mortgage and/or petitioner in
2001 totaled $232,000 (a $160,000 lump-sum payment and 12 monthly payments of
$6,000). Petitioner has not addressed the $1,574 discrepancy, and we accordingly
sustain respondent’s disallowance of a deduction for that amount.
                                        - 16 -

[*16] We disagree. First, we do not believe the evidence supports respondent’s

contention that Mrs. Sa’d could unilaterally access the corporate bank accounts.

Mrs. Sa’d had sought an order from the State court that her name be placed on the

accounts and that her signature be required on checks drawn on them. The State

court did not so order. Instead, the State court imposed restrictions on petitioner’s

access to those accounts. Thus, while the record is somewhat sketchy, we are

persuaded by the preponderance of the evidence that Mrs. Sa’d received her

monthly payments of $6,000 for the first 10 months of 2001 by means of

petitioner’s (or someone on his behalf who was authorized to draw on the

accounts) writing a check to Mrs. Sa’d.

      Second, even if we assume that Mrs. Sa’d could somehow unilaterally draw

on the Action Mortgage bank accounts, that fact would not disqualify the amounts

withdrawn as alimony. Respondent’s “payments” theory cannot be squared with

Jaffe, where we held that the taxpayer husband was entitled to an alimony

deduction for amounts that his spouse was entitled to withdraw by order of a

divorce court from a money market reserve account they owned jointly as tenants

by the entirety. The alimony deduction was equal to one-half of the amounts

withdrawn, corresponding to the portion of the account owned by the taxpayer

husband.
                                        - 17 -

[*17] Respondent has not suggested that Mrs. Sa’d had any ownership interest in

Action Mortgage for Federal income tax purposes during 2001. Indeed,

respondent has accepted Action Mortgage’s 2001 return insofar as it reports

petitioner as the owner of 100% of the stock of Action Mortgage during 2001 and

has determined that petitioner is required to report 100% of the increase

determined in Action Mortgage’s net distributable income for 2001. Thus,

respondent has accepted the position that petitioner was the 100% owner of Action

Mortgage during 2001. Accordingly, under the principles of Jaffe, the amounts in

Action Mortgage’s bank accounts that Mrs. Sa’d received in 2001 pursuant to the

State court order were “payment[s] in cash” “received” by her within the meaning

of section 71(b)(1).11 See also Stahl v. Commissioner, T.C. Memo. 2001-22.




      11
         We acknowledge that under Illinois law, during most of 2001 the stock of
Action Mortgage was “marital property” in which “[e]ach spouse has a species of
common ownership * * * which vests at the time dissolution proceedings are
commenced and continues only during the pendency of the action.” 750 Ill. Comp.
Stat. Ann. 5/503(e). But the statute further provides that this “common ownership”
interest in marital property “shall not encumber that property so as to restrict its
transfer, assignment or conveyance by the title holder” unless the title holder is
specifically enjoined from doing so. Id. In short, the stock of Action Mortgage
was, during most of 2001 until entry of the divorce judgment, marital property
subject to equitable distribution by the State court hearing the divorce action. The
same was true, however, of the money market reserve account at issue in Jaffe v.
Commissioner, T.C. Memo. 1996-196, to which the spouses held legal title as
tenants by the entirety.
                                        - 18 -

[*18] Respondent has not otherwise challenged the qualifications of the payments

as alimony. They were received under the interim order, which was an order of

separate maintenance; the interim order made no designations with respect to

income tax treatment; and petitioner and Mrs. Sa’d were not living together when

the payments were made. Finally, while the interim order did not provide that the

payments would terminate in the event of Mrs. Sa’d’s death, as future maintenance

payments under Illinois law they would have automatically terminated in the event

of the death of either party, given the absence of any provision to the contrary in

the order. See 750 Ill. Comp. Stat. Ann. 5/510(c). Accordingly, we hold that

petitioner is entitled to an alimony deduction for the $60,000 in payments Mrs.

Sa’d received in 2001 pursuant to the interim order.

Attorney’s Fees

      Petitioner first argues that the $69,000 Action Mortgage paid to Mrs. Sa’d’s

divorce attorneys is deductible by him because it was for the determination and

collection of alimony, citing Hesse v. Commissioner, 60 T.C. 685, 693-694 (1973),

aff’d without published opinion, 511 F.2d 1393 (3d Cir. 1975), Wild v.

Commissioner, 42 T.C. 706, 710-711 (1964), and Elliot v. Commissioner, 40 T.C.

304, 314 (1963). Petitioner misconstrues these cases. They hold that the

attorney’s fees of a taxpayer receiving alimony may be deducted as a cost of
                                         - 19 -

[*19] producing income. These cases are no help to petitioner as a payor of

alimony. In some circumstances, payment of a spouse’s attorney’s fees may

constitute alimony when the divorce or separation instrument requires it. See sec.

1.71-1T(b), Q&A-6, Temporary Income Tax Regs., 49 Fed. Reg. 34455, 34455

(Aug. 31, 1984). But here the marital settlement agreement did not require

petitioner to pay Mrs. Sa’d’s attorney’s fees; it specifically provided that both

parties were responsible for their own attorney’s fees.

      Finally, petitioner claims at one point on brief that the payment was made to

his attorneys. But at trial petitioner testified that the payment was for the

attorney’s fees of Mrs. Sa’d, and the invoices for legal fees that petitioner

submitted to substantiate the expense are from Mrs. Sa’d’s attorneys.

Consequently, petitioner’s claim that the attorney’s fees were paid in order to

preserve and protect his assets is meritless. Even if the fees had been paid to

petitioner’s attorneys, they were personal, as they arose from a divorce action. See

also United States v. Gilmore, 372 U.S. 39, 48 (1963) (“[T]he characterization, as

‘business’ or ‘personal,’ of the litigation costs of resisting a claim depends on

whether or not the claim arises in connection with the taxpayer’s profit-seeking

activities. It does not depend on the consequences that might result to a taxpayer’s

income-producing property from a failure to defeat the claim[.]”). Petitioner is
                                          - 20 -

[*20] therefore not entitled to a deduction for the $69,000 Action Mortgage paid to

Mrs. Sa’d’s attorneys.

Medical Payments

      In his brief petitioner has not addressed the $5,384 deduction for “Medical

Expense” claimed on Action Mortgage’s return that respondent disallowed. He is

therefore deemed to have conceded it. See Petzoldt v. Commissioner, 92 T.C. 661,

683 (1989). Even if not conceded, the claimed medical expenses are not alimony

because petitioner conceded at trial that the payments were made for the medical

care of his children as required by the marital settlement agreement. Alimony as

defined in section 71 specifically excludes child support payments. Sec. 71(c). A

payment is a child support payment if the terms of the divorce or separation

instrument “fix * * * [the payment] as a sum which is payable for the support of

children of the payor spouse.” Sec. 71(c)(1). A payment is treated as so fixed if

the amount will be reduced either (A) on the occurrence of a specified contingency

relating to the child (such as attaining a specified age) or (B) at a time clearly

associated with such a contingency, to the extent of the reduction. Sec. 71(c)(2).

      Article V of the marital settlement agreement, entitled “Medical and Related

Expenses”, required that both parties “equally pay all out-of-pocket [medical and

related] expenses incurred on behalf of” their children and not covered by health
                                        - 21 -

[*21] insurance. Article V further provided that the foregoing obligation would

continue for each child during the period preceding the child’s emancipation,

defined to include periods of pursuit of higher education, but not beyond age 23.

As the obligation for the children’s medical expenses would reduce to zero upon

their attaining the age of 23, the entire amount is child support and not deductible

alimony.12

Accuracy-Related Penalty

      Respondent determined that petitioner is liable for a 20% penalty under

section 6662(a) and (b)(1) and (2) on the basis of (1) negligence or disregard of

rules or regulations and (2) a substantial understatement of income tax. As the sole

shareholder of Action Mortgage, an S corporation, petitioner is liable for any

accuracy-related penalty arising from erroneous deductions claimed on the

corporate return. See Deason v. Commissioner, 590 F.2d 1377, 1379 (5th Cir.

1979), aff’g T.C. Memo. 1976-224; Leonhart v. Commissioner, 414 F.2d 749, 750

(4th Cir. 1969), aff’g T.C. Memo. 1968-98; Rodriguez v. Commissioner, T.C.

Memo. 1986-8.


      12
        Petitioner did not claim his children as dependents on his 2001 return, nor
has he shown that they would qualify as such under sec. 152. Accordingly, the
amount at issue would not constitute a deductible medical expense under sec.
213(a).
                                         - 22 -

[*22] Section 6662(a) imposes a 20% penalty for any underpayment attributable

to negligence or disregard of rules or regulations. Sec. 6662(a) and (b)(1).

Negligence includes any failure to make a reasonable attempt to comply with the

internal revenue laws. Sec. 6662(c). It connotes a lack of due care or a failure to

do what a reasonable and prudent person would do under the circumstances.

Bunney v. Commissioner, 114 T.C. 259, 266 (2000). A disregard of rules or

regulations is one that is careless, reckless, or intentional. Sec. 6662(c).

      Section 6662(b)(2) imposes a penalty of 20% of any underpayment

attributable to a substantial understatement of income tax. An “understatement” is

the excess of the amount of tax required to be shown on the return over the amount

of tax shown on the return. Sec. 6662(d)(2)(A). An understatement of income tax

is substantial when it exceeds the greater of 10% of the tax required to be shown on

the return or $5,000. Sec. 6662(d)(1)(A). The understatement is reduced by the

amount attributable to the tax treatment of any item if there was substantial

authority for the taxpayer’s treatment of the item or if the taxpayer had a

reasonable basis for the treatment and disclosed the relevant facts affecting the

treatment on the return or in a statement attached to it. Sec. 6662(d)(2)(B).

      The Commissioner bears the burden of production with respect to a

taxpayer’s liability for penalties. Sec. 7491(c). To satisfy that burden, the
                                         - 23 -

[*23] Commissioner must offer sufficient evidence to indicate that it is appropriate

to impose a penalty. See Higbee v. Commissioner, 116 T.C. 438, 446 (2001). If

the Commissioner satisfies his burden of production, the taxpayer bears the burden

of proving it is inappropriate to impose the penalty because of any exculpatory

factors. Id.

      No penalty is imposed with respect to any portion of an underpayment if the

taxpayer acted with reasonable cause and in good faith in regard to that portion.

Sec. 6664(c)(1). That determination is made case by case, depending on the facts

and circumstances. Those circumstances include reliance on a tax professional, if

the reliance was in good faith. Sec. 1.6664-4(b)(1), Income Tax Regs. To

establish that the reliance on a tax professional was in good faith, the taxpayer

must show that “(1) The adviser was a competent professional who had sufficient

expertise to justify reliance, (2) the taxpayer provided necessary and accurate

information to the adviser, and (3) the taxpayer actually relied in good faith on the

adviser’s judgment.” Neonatology Assocs., P.A. v. Commissioner, 115 T.C. 43,

99 (2000), aff’d, 299 F.3d 221 (3d Cir. 2002).

      There is an underpayment of tax in this case attributable to the disallowed

deductions that we have sustained for the $160,000 lump-sum payment, the

$69,000 payment of Mrs. Sa’d’s attorney’s fees in the divorce action, the claimed
                                          - 24 -

[*24] $5,384 in medical expenses of petitioner’s children, and the unexplained

$1,574 excess in the amounts deducted as monthly payments under the interim

order.

         We are persuaded that each portion of the underpayment arising from the

foregoing is attributable to negligence. The lump-sum and attorney’s fees

deductions were large and warranted greater care than petitioner exhibited in

claiming them; the lump-sum payment bore the hallmarks of a property settlement;

and the attorney’s fees deduction is simply without any legal support. More

tellingly, the reporting of these items as “Commissions” and “Consultation

expenses”, respectively, reflects a deliberate attempt to obfuscate. The deduction

of straightforward child support expenses as a business expense is clear negligence,

as is the unexplained deduction of the $1,574 excess above the total of the monthly

payments under the interim order.

         There is no substantial authority for the treatment of the foregoing items on

Action Mortgage’s return, nor was there disclosure of the facts affecting the

treatment. Thus, in the event the understatement arising from these items exceeds

the greater of 10% of the tax required to be shown on the return for the taxable

year or $5,000, the underpayment is also attributable to a substantial

understatement of income tax.
                                        - 25 -

[*25] Petitioner claims that his divorce attorney advised him that the $160,000

lump-sum payment was deductible as alimony. Reliance on such advice might

constitute reasonable cause. However, petitioner has not explained why, if he

thought the payment was alimony, he deducted it as “Commissions”. The only

evidence that petitioner received legal advice regarding the tax treatment of the

lump-sum payment is his own self-serving testimony. His divorce attorney was

not called as a witness. Petitioner also emphasizes that the payments at issue were

made to his spouse by Action Mortgage because the State court so ordered.

However, that is true only with respect to the 10 monthly payments of $6,000 made

pursuant to the interim order, the total of which has been allowed as a deduction.

There is no evidence, other than petitioner’s self-serving testimony, that the State

court required payment of any other amounts from the corporate entity. Indeed,

the available documentary evidence suggests the contrary. We conclude that

petitioner has not shown reasonable cause for the underpayment attributable to the

disallowed deduction for the lump-sum payment or for any other portion of the

underpayment.

      We therefore hold that the underpayment is attributable to negligence and, in

the event the understatement exceeds the statutory threshold, to a substantial

understatement of income tax.
                                  - 26 -

[*26] To reflect the foregoing,


                                                 Decision will be entered under

                                           Rule 155.
