                     T.C. Summary Opinion 2002-6



                       UNITED STATES TAX COURT



                  ESTELLE KERSH, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 8087-00S.            Filed January 30, 2002.



     Estelle Kersh, pro se.

     Paul K. Voelker, for respondent.



     COHEN, Judge:   This case was heard pursuant to the

provisions of section 7463 in effect when the petition was filed.

The decision to be entered is not reviewable by any other court,

and this opinion should not be cited as authority.

     Respondent determined deficiencies of $645 and $4,771 in

petitioner’s Federal income tax for 1995 and 1996, respectively,

and an addition to tax of $40.75 under section 6651(a)(1) for
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1995.   The issues for decision are:   (1) Whether certain payments

received by petitioner pursuant to a court order are gross income

to petitioner under section 71 and (2) whether petitioner is

liable for an addition to tax under section 6651(a)(1).

     Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.

                            Background

     Petitioner was married to Leonard Kersh in 1962.   Leonard

Kersh filed for divorce in 1994.

     The Supreme Court of New York County, New York, entered an

order granting pendente lite maintenance (Order) in favor of

petitioner on or about November 18, 1995.   The original date of

service of the application that related to the Order was

October 15, 1995.   Excerpts from the Order are as follows:

          In awarding temporary maintenance, * * * the court
     awards Mrs. Kersh $1,600 per month temporary
     maintenance. The award is retroactive to the original
     date of service of this application * * *. Retroactive
     sums due by reason of this award shall be paid off at
     the rate of $800 per month on top of the sums awarded
     until all arrears have been satisfied. Mr. Kersh may
     take credit for sums voluntarily paid for maintenance
     and support for this period for which he has cancelled
     checks or other similar proof of payment * * *. The
     first payment hereunder shall be made within ten (10)
     days after service of a copy of this order (without
     notice of entry), and then monthly thereafter.
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     A Divorce Judgment filed on or about January 24, 1997, was

granted by the Supreme Court of New York County, New York.

Excerpts from the Divorce Judgment are as follows:

          3. Plaintiff [Leonard Kersh] shall pay to
     defendant [Estelle Kersh] as and for her individual
     support and maintenance the sum of $2,000 per month
     until plaintiff retires from his employment at
     Lorillard Tobacco Company, plaintiff’s maintenance
     obligation shall terminate;

          4. Upon plaintiff’s retirement from Lorillard
     Tobacco Company, defendant is to receive a fifty (50%)
     percent interest in that portion of plaintiff’s pension
     plan with Lorillard Tobacco Company valued as of
     December 31, 1995, as to amount and years of service,
     pursuant to the terms of a Qualified Domestic Relations
     Order which is and shall be made a part thereof;

Leonard Kersh retired in 1997.

     Petitioner received payments totaling $1,300 from Leonard

Kersh prior to October 15, 1995 (the date of service of the

application that is related to the Order).   Petitioner received

payments totaling $1,600 and $17,400 in 1995 and 1996,

respectively, from Leonard Kersh pursuant to the Order.

     Petitioner filed an application for automatic extension of

time to file her 1995 tax return.    Petitioner filed her 1995 tax

return on August 15, 1996, and reported total tax of $1,499,

withholdings of $1,329, and tax owed of $170.   Petitioner did not

report any alimony or separate maintenance income.
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                              Discussion

     The parties dispute whether the payments received by

petitioner from Leonard Kersh are separate maintenance payments

under section 71.

     Section 71(a) provides that gross income generally includes

amounts received as alimony or separate maintenance payments.

Section 71(b)(1) defines alimony or separate maintenance payment

as 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 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.

     Respondent maintains that the payments received by

petitioner are gross income under section 71(a) because the

payments were for temporary maintenance.   Petitioner contends

that the payments received are not included in gross income

because the payments are not separate maintenance payments under

section 71(b)(1)(D).   Petitioner’s position is that the pension
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payments, payable under the Divorce Judgment, are not alimony

because they will not terminate upon her death and that the 1995

and 1996 payments are, in effect, advancements on the pension

that would be payable to her when her former husband retired.

     The Divorce Judgment, on which petitioner relies, was filed

on or about January 24, 1997, and does not apply to the payments

that she received pursuant to the Order in 1995 and 1996.

Regardless, petitioner’s reliance on the Divorce Judgment is

misplaced because the Divorce Judgment delineates separate

clauses for:   (1) Support and maintenance payments that terminate

upon Leonard Kersh’s retirement and (2) pension payments pursuant

to a Qualified Domestic Relations Order that commence upon

Leonard Kersh’s retirement.   The Divorce Judgment specifically

provided that the “maintenance obligation shall terminate” upon

Leonard Kersh’s retirement, and, thus, it does not continue after

petitioner’s death.

     The Order is the relevant document during the years in

issue.    The Order awards “temporary maintenance” payments, and,

pursuant to State law, the payments would have terminated upon

the death of either party.    See N.Y. Dom. Rel. Law sec. 236B1.a

(1995).    We conclude that the payments that petitioner received

in 1995 and 1996 pursuant to the Order are separate maintenance

payments and are gross income to petitioner under section 71(a).
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     Petitioner testified credibly that she received only the

payments set forth above, rather than larger amounts set forth in

the notice of deficiency.   The amounts of the payments received

by petitioner pursuant to the Order were $1,600 and $17,400 in

1995 and 1996, respectively.   The payments of $1,300 received by

petitioner prior to October 15, 1995, are not separate

maintenance payments under section 71(b)(1)(A).

     Respondent determined an addition to tax under section

6651(a)(1).   Section 6651(a)(1) provides an addition to tax for

failure to file any return required (determined with regard to

any extension of time for filing).       Petitioner filed an

application for automatic extension of time to file her 1995 tax

return and filed her 1995 tax return within the 4-month extension

period.   Petitioner is not liable for the addition to tax under

section 6651(a)(1).   See Notice 93-22, 1993-1 C.B. 305, 306.

     To reflect the foregoing,

                                              Decision will be entered

                                         under Rule 155.
