                  T.C. Summary Opinion 2009-198



                     UNITED STATES TAX COURT



                 DONALD A. BENZIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 7811-09S.              Filed December 28, 2009.




     Donald A. Benzin, pro se.

     John M. Janusz and Crystal-Lyn Orta, for respondent.



     ARMEN, 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.1   Pursuant to section

7463(b), the decision to be entered is not reviewable by any


     1
        Unless otherwise indicated, all subsequent 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 -

other court, and this opinion shall not be treated as precedent

for any other case.

     Respondent determined a deficiency in petitioner’s Federal

income tax for 2007 of $1,028.    The sole issue for decision is

whether payments made by petitioner to his former wife in 2007

are deductible as alimony under section 215.    We hold that they

are not.

                            Background

     Some of the facts have been stipulated, and they are so

found.   We incorporate by reference the parties’ stipulation of

facts, supplemental stipulation of facts, and accompanying

exhibits.   Petitioner resided in the State of New York when the

petition was filed.

     Petitioner and Judith Benzin (Ms. Benzin) married in 1989.

During the marriage, petitioner contributed to a pension plan

maintained by his employer, the U.S. Postal Service (USPS).

     Petitioner and Ms. Benzin were granted a divorce on

September 13, 2001, pursuant to a Judgment of Divorce (Judgment)

issued by the State of New York Supreme Court, County of Erie.

The Judgment states, in part, that “all of the marital assets

have been divided in accordance with the terms of the Oral

Stipulation Agreement dated June 15, 2001”.    The Oral Stipulation

Agreement (Agreement) was incorporated into the Judgment.    The
                              - 3 -

Agreement states, in part, “that neither party shall be obligated

to pay maintenance to the other party.”

     Petitioner retired in November 2006 and started receiving

distributions from his USPS pension plan in December 2006.

Beginning in December 2006, petitioner sent to Ms. Benzin a check

for $475 per month and did so for each month in 2007.

     On his 2007 Federal income tax return petitioner claimed a

deduction of $6,845 for “alimony paid” to Ms. Benzin.2

     In a notice of deficiency, respondent determined the

payments were not alimony and therefore disallowed the claimed

deduction.

     The parties’ stipulation of facts includes an untitled

single-page document, which has a page number on it indicating

that it is page 2 of a multipage document.   One paragraph of this

document reads as follows:

          ORDERED, that the Defendant, DONALD BENZIN, shall pay
     to the Plaintiff, JUDITH BENZIN, the sum of $475.00 per
     month, as a projected calculation of the Plaintiff’s
     interest in the Defendant’s pension with the United States
     Postal Service, at such time as the Defendant begins to
     receive his pension * * *[.]

Respondent reserved an objection to this document on the basis of

the best evidence rule.


     2
        Although petitioner claimed a deduction of $6,845 for
“alimony paid” in 2007, it was clarified at trial that the Court
would only consider whether $5,700 ($475 per month for 12 months)
constituted “alimony paid”. The additional $1,145 was on account
of a debt petitioner owed to Ms. Benzin.
                                - 4 -

                             Discussion

A.   Evidentiary Matters

      In general, the Court conducts trials in accordance with the

rules of evidence for trials without a jury in the U.S. District

Court for the District of Columbia and accordingly follows the

Federal Rules of Evidence.   Sec. 7453; Rule 143(a); Clough v.

Commissioner, 119 T.C. 183, 188 (2002).     However, Rule 174(b) and

section 7453 carve out an exception for trials of small tax

cases.   Under this exception, the Court conducts small tax cases

as informally as possible consistent with orderly procedure and

“any evidence deemed by the Court to have probative value shall

be admissible.”   Rule 174(b); Schwartz v. Commissioner, 128 T.C.

6, 7 (2007).

      The untitled single-page document stipulated by the parties

and to which respondent reserved an objection is incomplete and

was not explained by petitioner at trial.    The document raises

more questions than it provides answers.    Therefore, respondent’s

objection is sustained on the basis that the document is not

probative.   See Rule 174(b).

B.   Burden of Proof

      Generally, the Commissioner’s determinations are presumed

correct, and the taxpayer bears the burden of proving that those

determinations are erroneous.   Rule 142(a); Welch v. Helvering,

290 U.S. 111, 115 (1933).    Deductions are a matter of legislative
                                - 5 -

grace, and the taxpayer bears the burden of proving that he or

she is entitled to any deduction claimed.    Rule 142(a); Deputy v.

du Pont, 308 U.S. 488, 493 (1940); New Colonial Ice Co. v.

Helvering, 292 U.S. 435, 440 (1934).    Under section 7491(a)(1),

the burden of proof may shift from the taxpayer to the

Commissioner if the taxpayer produces credible evidence with

respect to any factual issue relevant to ascertaining the

taxpayer’s liability.    Petitioner has not alleged that section

7491 applies nor otherwise satisfied the requirements of that

section; therefore, the burden of proof remains on petitioner.

C.   Alimony Deduction

     Generally, property settlements or equitable divisions of

marital property incident to a divorce are not taxable events and

do not give rise to a deduction.    Sec. 1041; Estate of Goldman v.

Commissioner, 112 T.C. 317, 322 (1999), affd. without published

opinion sub nom. Schutter v. Commissioner, 242 F.3d 390 (10th

Cir. 2000).   On the other hand, payments made or received as

alimony or separate maintenance generally are deductible by the

payor spouse under section 215(a) and includable in the gross

income of the payee spouse under sections 61(a)(8) and 71.

     Section 215(b) defines an alimony or separate maintenance

payment as a payment which is includable in the gross income of

the recipient under section 71.    Section 71(b)(1) provides a
                                - 6 -

four-step inquiry for determining whether a payment is alimony or

separate maintenance.    Section 71(b)(1) provides:

          SEC. 71(b)(1). 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 * * * 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.

     Payments are deductible as alimony only if all four

requirements of section 71(b)(1) are met.

     Under subparagraph (A) of section 71(b)(1), alimony or

separate maintenance must be received pursuant to a divorce or

separation instrument.    According to section 71(b)(2), a “divorce

or separation instrument” means:

                    (A) a decree of divorce or separate
               maintenance or a written instrument incident to
               such a decree,
                                 - 7 -

                (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.

     Further, subparagraph (B) of section 71(b)(1) requires that

the divorce or separation instrument not designate the payment as

not alimony or separate maintenance.     A divorce or separation

instrument “contains a nonalimony designation if the substance of

such a designation is reflected in the instrument.”      Estate of

Goldman v. Commissioner, supra at 323.     In other words, a divorce

or separation agreement must provide a “clear, explicit and

express direction” that the payments are not to be treated as

alimony, but the designation need not mimic the language of

sections 71 and 215.   Richardson v. Commissioner, 125 F.3d 551,

556 (7th Cir. 1997), affg. T.C. Memo. 1995-554; Estate of Goldman

v. Commissioner, supra at 323.

     In the present case, neither the Judgment nor the

incorporated Agreement makes any mention of alimony or separate

maintenance.   Petitioner’s pension plan with the USPS and the

$475 per month payment therefrom were also not established by the

Judgment or the Agreement.   Indeed, the Agreement specifically

states that “neither party shall be obligated to pay maintenance

to the other party.”   In addition, petitioner testified:    “I

didn’t have to pay alimony, and she didn’t have to pay it to me

either.”
                                 - 8 -

     We conclude, therefore, that the Judgment of Divorce and the

Oral Stipulation Agreement incorporated therein do not provide

for payments to petitioner’s former wife and clearly, explicitly,

and expressly contain a nonalimony provision.       Accordingly, we

must hold that petitioner’s payments made to his former wife in

2007 did not satisfy the conditions set forth in section 71 and

are thus not properly deductible as alimony for the taxable year

in issue.

     Finally, we observe that the only year before us is 2007 and

that our holding relates only to that year.       Thus, our holding

does not preclude petitioner from asking a local court of

competent jurisdiction for a qualified domestic relations order

(QDRO) with respect to the monthly payment to his former wife of

a portion of his USPS pension.    See secs. 402(e)(1)(A), 414(p);

Amarasinghe v. Commissioner, T.C. Memo. 2007-333, affd. 282 Fed.

Appx. 228 (4th Cir. 2008).

     To reflect the foregoing,


                                              Decision will be entered

                                         for respondent.
