                   T.C. Summary Opinion 2007-4



                     UNITED STATES TAX COURT



                   JOHNNY AYRES, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 12569-05S.           Filed January 8, 2007.


     Johnny Ayres, pro se.

     Susan S. Canavello, for respondent.



     COUVILLION, Special Trial Judge: This case was heard

pursuant to section 7463 in effect when the petition was filed.1

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

and this opinion should not be cited as authority.


     1
      Unless otherwise indicated, subsequent section references
are to the Internal Revenue Code in effect for the year at issue.
The facts are not in dispute, and the issue is a question of law;
therefore, with respect to the burden of proof, the Court need
not address the applicability of sec. 7491. Higbee v.
Commissioner, 116 T.C. 438 (2001).
                                - 2 -

     Respondent determined a deficiency of $2,713 in petitioner’s

Federal income tax for 2002.

     The sole issue for decision is whether payments of $9,200 by

petitioner to his former wife during 2002 constituted alimony

deductible under section 215(a).    That issue is resolved by

whether the $9,200 payments satisfy the definition of “alimony or

separate maintenance payment” under section 71(b)(1)(D).

     Some of the facts were stipulated.    Those facts, with the

annexed exhibits, are so found and are incorporated herein by

reference.   At the time the petition was filed, petitioner was a

legal resident of Houma, Louisiana.

     Petitioner was married to Loredana Timmoneri, and they were

divorced on July 1, 2002, by a Louisiana State court.    There were

no children born of the marriage.    In the petition for divorce,

petitioner prayed that the community property regime between him

and his wife be terminated, and the property be divided between

them according to law.   No allegation was made in the petition

for divorce as to alimony or spousal support, and the Judgment of

Divorce that was rendered on July 1, 2002, does not contain a

provision requiring payment of alimony by petitioner to his

former spouse.   By an Act of Partition of Community Regime,

effective on April 11, 2002, petitioner and his spouse agreed to

a partition or division of their community property.    The

document explicitly states:    “In consideration of the transfer to
                               - 3 -

him as hereinafter set forth, Johnny does hereby promise to

deliver unto Loredana a payment of $350 per month for six months,

starting in September 2002, and ending in March, 2003”.    The

document further identified a car and clothing that were

transferred to petitioner’s former wife and described other

properties that went to petitioner.    The document also states:

“and in further consideration whereof Loredana does hereby waive

any rights that she may have to interim periodic support or final

periodic support”.   The parties agree that, pursuant to the

agreement, petitioner made total payments of $9,200 to his former

spouse during the year at issue.2   There is no language in the

agreement that would have relieved petitioner of the obligation

of making the payments to his former spouse in the event of her

prior death.   There were no other court orders or agreements

between petitioner and his former spouse.    On his Federal income


     2
      The $9,200 claimed as alimony consists of 12 payments of
$350 each during the year 2002 totaling $4,200. In addition,
prior to 2002, when petitioner and his spouse separated,
petitioner issued a check payable to his wife in the amount of
$5,000. That check was held by petitioner’s sister-in-law with
the understanding that, if petitioner and his spouse did not
reconcile within 6 months, the check would be delivered to
petitioner’s spouse. Petitioner and his spouse did not
reconcile, and the 6-month period elapsed during 2002. The
sister-in-law delivered the $5,000 check to petitioner’s spouse,
who then cashed the check during the year at issue, 2002. Thus,
the $4,200 total monthly payments during 2002 and the $5,000
check that was cashed during 2002 account for the $9,200 claimed
by petitioner as alimony. There was no documentation with
respect to the $5,000 check; however, respondent’s position at
trial was that it did not constitute alimony. The Court agrees
with that position.
                                - 4 -

tax return for 2002, petitioner claimed a deduction of $9,200 for

alimony.    In the notice of deficiency, respondent disallowed the

claimed $9,200 in alimony.

     Petitioner testified at trial that his former spouse “wanted

spousal support” and “she wasn’t really entitled to any kind of

property.   We had only been married for about a year, and the

only purchase we made during that time was a car, and I gave her

the car, but she wanted some support.”   This testimony, however,

is not corroborated by the Act of Partition referred to above or

by an order of the court.

     Section 71(a) provides generally that alimony payments are

included in the gross income of the payee spouse, and section

215(a) provides generally that alimony payments are deductible by

the payor spouse.   Section 215(b) provides in pertinent part that

the term “alimony” means any alimony, as defined in section

71(b), which is includable in the gross income of the recipient

under section 71.   Section 71(b) defines alimony as follows:


          SEC. 71(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 includable in gross income under this section
                               - 5 -

               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.


     Petitioner’s deduction for alimony is allowable only if all

four criteria of section 71(b)(1) are met.     Jaffe v.

Commissioner, T.C. Memo. 1999-196.     Thus, for our purposes here,

if the divorce decree or the Act of Partition provides that the

payment by one spouse to the other spouse is not includable in

the gross income of the receiving spouse and is not allowable as

a deduction to the payer spouse, the payments do not constitute

deductible alimony.   Sec. 71(b)(1)(B).   Neither of these

documents contained such a provision.

     Petitioner’s argument that his former wife wanted spousal

support, and his payments to her were a fulfillment of that

desire, does not change the character of the payments to

constitute the payments as alimony.    In Richardson v.

Commissioner, 125 F.3d 551, 556 (7th Cir. 1997), affg. T.C. Memo.

1995-554, the Court of Appeals for the Seventh Circuit stated:

“For a legal instrument to make known directly that a spouse’s
                               - 6 -

payments are not to be treated as income, we believe that the

instrument must contain a clear, explicit and express direction

to that effect.”   If petitioner’s contention is correct, it

clearly was not contained in the Act of Partition agreement with

his former spouse.   The Court, therefore, sustains respondent.

     Reviewed and adopted as the report of the Small Tax Case

Division.



                                            Decision will be entered

                                       for respondent.
