                           T.C. Summary Opinion 2012-38



                          UNITED STATES TAX COURT



                 ROBERT R. HAMMOND, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 27374-10S.                           Filed April 30, 2012.



      Robert R. Hammond, pro se.

      R. Jeffrey Knight, for respondent.



                               SUMMARY OPINION


      DEAN, 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.

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.

Unless otherwise indicated, subsequent section references are to the Internal
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Revenue Code in effect for the year at issue, and Rule references are to the Tax

Court Rules of Practice and Procedure.

      Respondent determined for 2008 a deficiency in petitioner’s Federal income

tax of $8,627 and an accuracy-related penalty under section 6662(a) of $1,725.40.

      The issues for decision are whether petitioner: (1) is entitled to deduct certain

amounts from income as alimony paid during the year; and (2) is liable for the

accuracy-related penalty.1

                                    Background

      All of the facts have been stipulated and are so found. The stipulation of facts

and the attached exhibits are incorporated herein by reference. Petitioner resided in

Pennsylvania when the petition was filed.

       On July 20, 2005, petitioner and his then spouse (Mrs. Hammond) appeared

at a hearing in the Court of Common Pleas of Philadelphia on the issue of an

alimony pendente lite (APL) award and/or establishment of a spousal support order.

According to the “Report Of Master In Support” (report) filed as a result of the

hearing, the parties married on January 19, 1960, and separated on July 6, 1981.

Mrs. Hammond filed a complaint in divorce on January 20, 1982, the report states,


      1
       Other adjustments made in the notice of deficiency are computational and
will not be discussed.
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that remained dormant until it was dismissed for lack of prosecution in 1993. The

report further states that petitioner filed a divorce complaint in 2005 to which Mrs.

Hammond filed a counterclaim for APL. The master found in the report that Mrs.

Hammond was entitled to a “50% downward deviation” in the recommended

guidelines for an award of APL.

        On October 31, 2007, in a hearing before the “Permanent Master in Divorce”,

petitioner and Mrs. Hammond signed a property and settlement agreement

(agreement). Petitioner was required, among other provisions of the agreement, to

transfer to Mrs. Hammond all right, title and interest in an account at Citizen’s

Bank.

        Another provision states that “As her further share of equitable distribution,”

petitioner shall pay to Mrs. Hammond $26,000 within 60 days of the agreement.

The agreement ended the previously ordered APL, and the parties agreed that “All

claims between the parties for alimony, counsel fees, costs, and equitable

distribution are settled and resolved by this Agreement.”

        On November 5, 2007, the Court of Common Pleas of Philadelphia County,

Family Court Division, entered its decree and order of divorce (decree)

incorporating by its terms the provisions of the agreement between the parties dated
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October 31, 2007. The decree states that the agreement “shall not merge with, but

shall survive this Decree and Order.”

      Petitioner closed the Citizen’s Bank account on December 14, 2007, and

issued a check to Mrs. Hammond for $17,055.61. Petitioner also provided her on

January 28, 2008, a check drawn on his individual account at Wachovia Bank for

$26,000. The check was honored on February 22, 2008.

      Petitioner deducted $29,500 from his gross income on his 2008 Federal

income tax return as alimony paid during the taxable year.

                                      Discussion

      Generally, the Commissioner’s determinations in a notice of deficiency are

presumed correct, and the taxpayer has the burden of proving that those

determinations are erroneous. See Rule 142(a); Welch v. Helvering, 290 U.S. 111,

115 (1933). In some cases the burden of proof with respect to relevant factual

issues may shift to the Commissioner under section 7491(a). As there is no factual

issue in dispute, the burden of proof does not shift to respondent.

Alimony Deduction

      Under Section 215 “there shall be allowed as a deduction an amount equal to

the alimony or separate maintenance payments paid during such individual’s taxable

year.” Section 71(b)(1) defines the term “alimony or separate maintenance
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payment”. Whether petitioner’s payments qualify for deduction therefore hinges on

their meeting the definition of “alimony” in section 71(b)(1):

        (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,

             (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.

      Congress intended that the definition of alimony preclude the deduction of

large, one-time lump-sum property settlements. See the discussion in Hoover v.

Commissioner, 102 F.3d 842, 845 (6th Cir. 1996), aff’g T.C. Memo. 1995-183.

      Petitioner argues in his pretrial memorandum that amounts paid under

divorce or separate maintenance decrees that meet the requirements of section

71(b) are alimony payments for Federal tax purposes. Petitioner asserts that his
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payments under the agreement meet all the requirements of the law for

deductibility.

      Respondent argues first that the stipulated evidence shows that the maximum

alimony deduction allowable to petitioner for 2008 is the $26,000 payment of

January 28, 2008, the remaining $3,500 of claimed alimony being completely

unsubstantiated. The Court is in accord with respondent. Respondent further

disagrees with petitioner’s position that he has met all the requirements of section

71(b) with respect to the $26,000 payment.

      Respondent disagrees that petitioner met the requirements of section

71(b)(1)(B) and (D). Respondent argues that the agreement contains a nonalimony

designation, and the obligation to make the payment did not terminate at the death

of the recipient spouse. The Court’s analysis will begin with the second issue.

      The agreement contains no statement that the requirement to make the

$26,000 payment to Mrs. Hammond would terminate in the unlikely event that she

died within the 60-day period between the signing of the agreement and the due date

of the payment. Section 71(b)(1)(D) does not, however, require that the divorce or

separation instrument itself contain “termination upon death” language. If

payments will terminate upon the payee’s death by operation of State law, they may
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still qualify under section 71(b)(1) even if the parties fail to state in the divorce

instrument that payments terminate upon the payee’s death. Kean v.

Commissioner, 407 F.3d 186, 191 (3d Cir. 2005), aff’g T.C. Memo. 2003-163,

supplemented by T.C. Memo. 2003-275; Hoover v. Commissioner, 102 F.3d

at 846.

       The Court must therefore determine whether petitioner’s obligation to make

the payment would have terminated upon the death of Mrs. Hammond by operation

of Pennsylvania law. Under 23 Pa. Cons. Stat. Ann. sec. 3707 (West 2010), Effect

of death of either party, the right to receive alimony under chapter 37, Alimony and

Support, ceases upon the death of the payee party. If petitioner’s agreement was for

the payment of alimony under chapter 37 of title 23, Pennsylvania domestic relations

law,2 the agreement meets the requirements of section 71(b)(1)(D).

       Under 23 Pa. Cons. Stat. Ann. sec. 3701, Alimony, if the court makes an

order of alimony, it must set forth the reasons for the award of alimony. Id. sec.




       2
        Although Federal law governs the taxation of property interests, the property
interests of divorcing parties are determined by State law. Hoover v.
Commissioner, 102 F.3d 842, 844-845 (6th Cir. 1996), aff’g T.C. Memo. 1995-183;
see also Gilbert v. Commissioner, T.C. Memo. 2003-92, aff’d sub nom. Hawley v.
Commissioner, 94 Fed. Appx. 126 (3d Cir. 2004); Zinsmeister v. Commissioner,
T.C. Memo. 2000-364, aff’d, 21 Fed. Appx. 529 (8th Cir. 2001).
                                          -8-

3701(d). Here, there was no court-ordered award of alimony, but instead the court

incorporated in its decree the settlement agreement between the parties. The

divorce decree provides that the agreement between petitioner and Mrs. Hammond,

although incorporated into the decree, “shall not merge with, but shall survive this

Decree and Order.” The agreement, therefore, retains its identity as a contract and

does not become a court order. D’Huy v. D’Huy, 568 A.2d 1289, 1292 (Pa. Super.

Ct. 1990).

      The agreement by its terms provides: “As her further share of equitable

distribution, Husband shall pay to Wife the sum of $26,000.” The equitable division

of marital property is governed by 23 Pa. Cons. Stat. Ann. sec. 3502, in chapter 35

of the domestic relations title. Under 23 Pa. Cons. Stat. Ann. section 3502(a) the

State court may “divide, distribute, or assign” marital property between the parties.

There is no provision in chapter 35, Property Rights, of Pennsylvania’s domestic

relations title addressing the termination of an obligation to distribute marital

property upon the death of one of the parties. Because petitioner’s payment does

not constitute alimony under Pennsylvania law, 23 Pa. Cons. Stat. Ann. sec. 3707

was not applicable.

      Marital settlement agreements are governed by the law of contracts in

Pennsylvania. Kripp v. Kripp, 849 A.2d 1159, 1163 (Pa. 2004); Ballestrino v.
                                        -9-

Ballestrino, 583 A.2d 474, 476 (Pa. Super. Ct. 1990). The court looks to the

contract to interpret the agreement. Kripp, 849 A.2d at 1163. Where the contract

has clear and unambiguous terms, the court must construe it as written, giving the

words of the contract their plain, ordinary, and accepted meaning. Sorace v. Sorace,

655 A.2d 125, 127 (Pa. Super. Ct. 1995). The pertinent provision is clear on its

face. It does not provide that the payment is due only if Mrs. Hammond survives

for the 60-day period for payment. Petitioner made promises to perform in return

for promises from Mrs. Hammond to perform. There are no ambiguities as to the

provision at issue. Petitioner’s payment was in the nature of a property settlement.

Had Mrs. Hammond died within the 60-day period for payment under the

agreement, her estate would have had a valid claim for the payment. See Sugarman

v. Commissioner, T.C. Memo. 1996-410; see also Hoover v. Commissioner, 102

F.3d at 842.

      Petitioner’s payment does not meet the requirement of section 71(b)(1)(D)

and is therefore not deductible. Because the Court finds that the payment fails the

terminable-upon-the-death requirement, respondent’s other argument need not be

addressed. The Court has considered the arguments of petitioner and finds them

without merit.
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Accuracy-Related Penalty

      Section 7491(c) imposes on the Commissioner the burden of production in

any court proceeding with respect to the liability of any individual for penalties and

additions to tax. Higbee v. Commissioner, 116 T.C. 438, 446 (2001); Trowbridge

v. Commissioner, T.C. Memo. 2003-164, aff’d, 378 F.3d 432 (5th Cir. 2004). In

order to meet the burden of production under section 7491(c), the Commissioner

need only make a prima facie case that imposition of the penalty or the addition to

tax is appropriate. Higbee v. Commissioner, 116 T.C. at 446.

      Respondent determined that for 2008 petitioner underpaid a portion of his

income tax on account of negligence or disregard of rules or regulations and that

there was a substantial understatement of income tax.

      Section 6662(a) and (b)(1) and (2) imposes a 20% penalty on the portion of

an underpayment of tax attributable to any one of various factors, including

negligence or disregard of rules or regulations and a substantial understatement of

income tax. “Negligence” includes any failure to make a reasonable attempt to

comply with the provisions of the Internal Revenue Code, including any failure to

keep adequate books and records or to substantiate items properly. See sec.

6662(c); sec. 1.6662-3(b)(1), Income Tax Regs.
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        A “substantial understatement” includes an understatement of income tax that

exceeds the greater of 10% of the tax required to be shown on the return or $5,000.

Sec. 6662(d); sec. 1.6662-4(b), Income Tax Regs.

        Section 6664(c)(1) provides that the penalty under section 6662(a) shall not

apply to any portion of an underpayment if it is shown that there was reasonable

cause for the taxpayer’s position and that the taxpayer acted in good faith with

respect to that portion. The determination of whether a taxpayer acted with

reasonable cause and in good faith is made on a case-by-case basis, taking into

account all the pertinent facts and circumstances. Sec. 1.6664-4(b)(1), Income Tax

Regs.

        Section 1.6664-4(b)(1), Income Tax Regs., specifically provides:

“Circumstances that may indicate reasonable cause and good faith include an honest

misunderstanding of fact or law that is reasonable in light of all the facts and

circumstances, including the experience, knowledge, and education of the taxpayer.”

The most important factor is the extent of the taxpayer’s effort to assess his proper

tax liability for the year. Id.

        Petitioner has a substantial understatement of income tax for 2008 since the

understatement amount will exceed the greater of 10% of the tax required to be

shown on the return or $5,000. The Court concludes that respondent has produced
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sufficient evidence to show that the accuracy-related penalty under section 6662(a)

is appropriate for 2008.

      Petitioner offered no argument nor stipulated any facts to show that there was

reasonable cause for and that he acted in good faith with respect to the

underpayment.

       Respondent’s determination of the accuracy-related penalty under section

6662(a) for 2008 is sustained.

      To reflect the foregoing,


                                                        Decision will be entered

                                                 for respondent.
