                    T.C. Summary Opinion 2007-169



                       UNITED STATES TAX COURT



          OBIE HARRIS AND QUINCY RAMSAY, Petitioners v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5038-06S.              Filed September 25, 2007.



     Obie Harris, pro se.

     Stephen J. Neubeck, for respondent.



     RUWE, 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




     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code in effect for the year in issue, and
all Rule references are to the Tax Court Rules of Practice and
Procedure.
                               - 2 -

to be entered is not reviewable by any other court, and this

opinion shall not be treated as precedent for any other case.

     Respondent determined a deficiency of $1,664 in petitioners’

2002 Federal income tax.   The only issue we must decide is

whether petitioners are entitled to a $6,4002 alimony deduction

they claimed on their tax return for the taxable year 2002.3

                            Background

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

The stipulation of facts and the attached exhibits are

incorporated by this reference.   When the petition was filed,

petitioners resided in Dayton, Ohio.

     On April 1, 2002, petitioner Obie Harris (Mr. Harris) left

the marital home he jointly owned and shared with his then

spouse, Carrie Harris (Ms. Harris).    By temporary order (first

temporary order) dated May 6, 2002, the Common Pleas Court of




     2
       The record is not clear as to the specific items making up
the $6,400 deducted on the return, but it is apparent that
petitioners included some child support payments in this amount.
At trial, respondent conceded that petitioners were entitled to
deduct $1,317 of the $6,400 alimony deduction claimed on their
return.
     3
       Respondent’s determination to disallow the alimony
deduction resulted in an increase in petitioners’ adjusted gross
income and a decrease in their tentative minimum tax. Certain
miscellaneous itemized deductions, deductible only to the extent
that they exceed a percentage of petitioners’ adjusted gross
income, were reduced. The decrease in the tentative minimum tax
also reduced petitioners’ alternative minimum tax liability. Our
determination will affect these adjustments.
                                - 3 -

Montgomery County, Ohio, Division of Domestic Relations (common

pleas court) directed Mr. Harris in relevant part as follows:

          IT IS FURTHER ORDERED that plaintiff [Mr. Harris]
     shall pay to defendant [Ms. Harris] by way of temporary
     spousal support, the sum of $844.40 per month beginning
     05/01/2002. If defendant is residing in the marital
     residence, plaintiff shall have the right, option and
     privilege of discharging this monthly spousal support
     by paying the mortgage/rent (including taxes and
     insurance) and basic utilities at the marital
     residence. * * * [4]

     On June 4, 2002, Ms. Harris, through counsel, requested from

the common pleas court a temporary order of custody, parenting

time, and child support.   By temporary order (second temporary

order) dated June 24, 2002, and in accordance with the agreement

by Mr. and Ms. Harris, the common pleas court directed Mr. Harris

in relevant part as follows:   “Temporary child support shall be

$40 per child per week for four (4) children, totaling $160 per

week.    Temporary child support payments shall be made through the

office of Defendant’s attorney”.

     On November 15, 2002, the common pleas court issued a Final

Judgment and Decree of Divorce (divorce decree) between Mr. and

Ms. Harris.    Under the title “SPOUSAL SUPPORT”, the common pleas

court directed Mr. Harris in relevant part as follows:


     4
       Ohio statutory law provides that “During the pendency of
any divorce, or legal separation proceeding, the court may award
reasonable temporary spousal support to either party.” Ohio Rev.
Code Ann. sec. 3105.18(B) (Anderson 2003). It also provides that
“Any award of spousal support made under this section shall
terminate upon the death of either party, unless the order
containing the award expressly provides otherwise.” Id.
                               - 4 -

          The plaintiff/obligor [Mr. Harris] shall pay as
     and for spousal support $439.00 per month beginning
     October 16, 2002 and ending October 16, 2009, to be
     discharged in equal amounts according to the pay
     schedule of the plaintiff/obligor. * * *

          The plaintiff/obligor shall pay an additional
     $561.00 per month in spousal support beginning October
     16, 2002 and ending October 16, 2009 or upon the re-
     marriage or death of the defendant/obligee,
     representing the mortgage payment for the
     defendant/obligee. This additional spousal support
     shall be paid directly to the mortgage company

The common pleas court also directed Mr. Harris to “pay as and

for child support $222.00 per child per month for four (4)

children, for a total of $888.00 per month to be discharged in

equal amounts according to the pay schedule of the

plaintiff/obligor.”   Pursuant to the divorce decree, both spousal

and child support payments were required to be made through the

Ohio Child Support Payment Central.

     Mr. Harris met his obligations under the first temporary

order by opting to make the monthly mortgage payments of $561

beginning in May 2002.   Mr. and Ms. Harris were jointly liable on

this mortgage.   Mr. Harris timely made payments in 2002 directed

by the above-mentioned common pleas court temporary orders and

divorce decree including the $561 mortgage payments for the

months of May through December and the $439 monthly spousal

support payments for October, November, and December.
                               - 5 -

                             Discussion

     Section 215(a) provides that an individual is allowed a

deduction for alimony or separate maintenance payments as defined

in section 71(b).   Alimony does not include any part of a payment

which the terms of the divorce instrument fix as a sum payable

for the support of the children of the payor spouse.   Sec. 71(c);

Zinsmeister v. Commissioner, T.C. Memo. 2000-364, affd. 21 Fed.

Appx. 529 (8th Cir. 2001).

     Respondent acknowledges that Mr. Harris paid at least

$6,400, and maybe more, during 2002 pursuant to the court orders

and decree in his divorce proceeding but argues that most of

these payments did not constitute deductible alimony or separate

maintenance as defined in section 71(b).

     Section 71(b) provides:

     SEC. 71.   ALIMONY AND SEPARATE MAINTENANCE PAYMENTS.

          (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 under
                this section and not allowable as a
                deduction under section 215,
                              - 6 -

                    (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.

               (2) Divorce or separation instrument.–-The
          term “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.

     The common pleas court’s first temporary order and the

divorce decree satisfy the requirements of the definition of a

“divorce or separation instrument”.   Mr. Harris’s child support

payments made pursuant to the second temporary order and the

divorce decree clearly fail to satisfy the requirements of

section 71(b) and cannot be deducted as alimony.
                              - 7 -

     We must determine which of the payments directed by the

first temporary order and the divorce decree qualify as alimony

under the requirements of section 71(b).   Respondent does not

contest that Mr. Harris made the monthly $439 spousal support

payments directed by the divorce decree, and it is clear that

these payments, totaling $1,317, constitute alimony or separate

maintenance payments.

     With regard to the mortgage payments, we considered a

similar situation in Zinsmeister v. Commissioner, supra, where we

stated:

          Different considerations come into play regarding
     whether petitioner’s payment of the mortgages * * *
     were on * * * [the spouse’s] behalf. When a divorce
     court orders one spouse to make payments on a mortgage
     for which both spouses are jointly liable, a portion of
     such payments discharges the legal obligation of the
     other spouse. In such circumstances the payee spouse
     has received income under the general principle of Old
     Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929)
     (payment by a third party of a person’s legal
     obligation is taxable income to that person).
     Accordingly, in such cases, one-half of the mortgage
     payment is includable in the gross income of the payee
     spouse and, to the extent it otherwise qualifies as
     alimony, it is deductible by the payor spouse as
     alimony. See Taylor v. Commissioner, 45 T.C. 120, 123-
     124 (1965); Simpson v. Commissioner, T.C. Memo. 1999-
     251; Zampini v. Commissioner, T.C. Memo. 1991-395; Rev.
     Rul. 67-420, 1967-2 C.B. 63; see also sec. 1.71-1T(b),
     Q&A-6, Temporary Income Tax Regs., 49 Fed. Reg. 34455
     (Aug. 31, 1984).

     We find that one-half of each of the eight $561 monthly

payments made by Mr. Harris during 2002 as directed by the common

pleas court in the first temporary order and the divorce decree
                                 - 8 -

constitutes alimony or a separate maintenance payment under

section 71(b).   The other half of each of Mr. Harris’s mortgage

payments is attributable to his own mortgage obligation and thus

does not qualify as alimony.

     Petitioners have not produced any evidence of other payments

that could be considered alimony or separate maintenance.    We

hold that petitioners are entitled to an alimony deduction

limited to the $1,317 total of the three spousal support payments

for October, November, and December 2002 plus one-half of each

$561 monthly mortgage payment for May through December 2002.

     To reflect the foregoing,


                                           Decision will be entered

                                      under Rule 155.
