                  T.C. Summary Opinion 2004-42



                     UNITED STATES TAX COURT



                  DONALD TOBKIN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 6646-00S.               Filed April 5, 2004.



     Donald Tobkin, pro se.

     Ross M. Greenberg, for respondent.



     COUVILLION, Special Trial Judge:     This case was heard

pursuant to section 7463 of the Internal Revenue Code in effect

at the time the petition was filed.1    The decision to be entered




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


is not reviewable by any other court, and this opinion should not

be cited as authority.

     Respondent determined a deficiency of $15,111 in

petitioner's Federal income tax and an addition to tax under

section 6651(a)(1) of $8,777.50 for 1995.   After concessions

noted hereafter, the issues for decision are:   (1) Whether

petitioner, under section 215(a), is entitled to an alimony

deduction in excess of amounts allowed by respondent, and (2)

whether petitioner is liable for the addition to tax under

section 6651(a)(1) for the late filing of his 1995 Federal income

tax return.2

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

exhibits annexed thereto, are so found and are made part hereof.

Petitioner's legal residence at the time the petition was filed

was Broward County, Florida.

     On his Federal income tax return for 1995, petitioner

claimed a deduction of $60,000 for alimony paid to his former

spouse, Jane Seyler.   In the notice of deficiency, respondent

disallowed $38,777 of the claimed amount, thus allowing a $21,223


     2
          Petitioner's 1995 Federal income tax return was a joint
return with his then spouse, Marilyn Byrd. The notice of
deficiency is addressed jointly to petitioner and Marilyn Byrd
Tobkin. The petition was initially filed as a joint petition by
petitioner and Marilyn Byrd Tobkin; however, the case was
dismissed for lack of jurisdiction as to Marilyn Byrd Tobkin on
the ground that the petition was not filed on her behalf by a
person authorized to do so.
                                 - 3 -


alimony deduction.    At trial, respondent conceded petitioner's

entitlement to an additional alimony deduction of $10,175.      With

the concession, petitioner was allowed a total alimony deduction

of $31,398, leaving at issue petitioner's claim to an additional

alimony deduction of $28,602.

     Petitioner is a medical doctor and a lawyer.    He received

his medical degree from Wayne State University School of

Medicine.    He began a medical practice in Broward County,

Florida, in 1977.    Later, he attended evening classes at the

University of Miami School of Law and received a law degree in

1985.    At the time of trial, petitioner was engaged as a medical

malpractice attorney.     His practice was plaintiff oriented, with

most cases taken on a contingency fee basis.

     Petitioner married Jane Seyler on January 11, 1977.

Throughout his marriage to Ms. Seyler and thereafter, petitioner

experienced depression.    The marriage was troubled, and Ms.

Seyler eventually petitioned for divorce.    A final judgment of

Dissolution of Marriage between the two was entered on May 26,

1993 (final judgment).3

     The final judgment provided that petitioner pay Ms. Seyler

permanent periodic alimony of $2,000 per month.    The final



     3
          Petitioner married Marilyn Byrd Tobkin on May 27, 1993,
and was involved in divorce proceedings with her at the time of
trial.
                                - 4 -


judgment also provided that the alimony obligation would

terminate upon the death of petitioner or the death or remarriage

of Ms. Seyler.    The final judgment confirmed an earlier order

dated April 29, 1993, that petitioner pay Ms. Seyler's "temporary

attorney's fees", suit monies, and costs in the amount of

$32,700.4   The final judgment further provided that petitioner

"shall, as an incidence of support to the Wife, pay her

attorney's fees, suit monies and costs.    The Court specifically

reserves jurisdiction for the purpose of determining the amount

of the fees, suit monies, and costs."

     Petitioner filed for bankruptcy protection on September 9,

1993.    Ms. Seyler thereafter filed a petition in State court

seeking a determination as to the dischargeability of

petitioner's obligations arising under the final judgment.5      By

order dated February 26, 1996, the State court approved a

stipulation of settlement that provided $18,000 of Ms. Seyler's


     4
          Of this $32,700 total, $29,250 was attorney's fees,
$3,000 was for accountant's fees, and $450 was for an expert
witness fee.
     5
          Under 11 U.S.C. sec. 523(a)(5) (2000), a debt "to a
spouse, former spouse, or child of the debtor, for alimony to,
maintenance for, or support of such spouse or child, in
connection with a separation agreement, divorce decree or other
order of a court of record, determination made in accordance with
State or territorial law by a governmental unit, or property
settlement agreement" is nondischargeable in bankruptcy, and the
appropriate State court and the bankruptcy court have concurrent
jurisdiction to determine the dischargeability of such
obligations.
                                - 5 -


$25,300 claim was nondischargeable, and the remainder was

dischargeable.    Petitioner received a discharge in bankruptcy on

March 12, 1996.    The final decree closing petitioner's bankruptcy

case was entered on August 12, 1999.

     In 1995, pursuant to his obligations under the final

judgment, petitioner paid $31,398 to Ms. Seyler.     These payments

included $17,223 made through Broward County officials, $4,000

paid directly to Ms. Seyler, and $10,175 made through the

bankruptcy trustee.    As noted earlier, respondent concedes that

these payments were alimony and that petitioner was entitled to a

$31,398 deduction for alimony paid.     Also in 1995, petitioner

paid $28,825 through the bankruptcy trustee to Ms. Seyler's

attorney for her legal fees incurred in connection with the

divorce proceedings.   Petitioner contends that these payments

constitute alimony, and it is these payments that the Court

addresses.

     Petitioner did not file his 1995 Federal income tax return

timely.   He had an accountant who reminded him that the return

was due on April 15, 1996.   Petitioner applied for and received

an automatic extension to file until August 15, 1996.     However,

petitioner and his then wife, Marilyn Byrd, did not file their

joint 1995 Federal income tax return by the extended deadline.

Their return was received by the Internal Revenue Service on

August 27, 1997.
                               - 6 -


     The first issue is whether petitioner is entitled to an

alimony deduction in excess of the amounts allowed by respondent.

The facts as to this issue are not in dispute; the issue is one

of law.   Therefore, with respect to the burden of proof, the

Court need not address the applicability of section 7491.     Higbee

v. Commissioner, 116 T.C. 438 (2001).

     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
           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
                                 - 7 -


                 (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.


       Thus, for our purposes here, if the divorce or separation

instrument provides that the payment by one spouse to or on

behalf of the other spouse is not includable in the gross income

of the receiving spouse and is not allowable as a deduction to

the payor spouse, the payments do not constitute deductible

alimony.    Sec. 71(b)(1)(B).   However, if the obligation of the

payor to make the payments terminates upon the death of the payee

spouse, and there is no obligation on the payor spouse to make

any substitute payments to the payee's estate, the payments by

the payor spouse would constitute alimony, and such payments

would be deductible under section 71(b)(1)(D).     Respondent

contends that petitioner's payment of Ms. Seyler's attorney's

fees of $28,825 is not deductible under section 71(b)(1)(B) and

(D).

       Section 71(b)(1)(B) thus requires that the divorce or

separation instrument between petitioner and Ms. Seyler not

designate petitioner's payment of Ms. Seyler's attorney's fees as

a payment that was not includable in gross income and not

allowable as a deduction under section 215.     Burkes v.

Commissioner, T.C. Memo. 1998-61.     In arguing that section
                               - 8 -


71(b)(1)(B) was not satisfied, respondent relies on paragraph 8

of the findings in the final judgment, which states:


          In accordance with this Court's Order on Wife's Motion
     for Clarification of Order on Temporary Support, the
     determination of taxability of all payments made to the Wife
     or made on behalf of the Wife was deferred until final
     hearing. The Court hereby determines that all payments made
     to the Wife in accordance with this Court's Temporary
     Support Order is [sic] designated as non-taxable to her and
     non-deductible by the Husband in accordance with Internal
     Revenue Code Section 71(b)(1)(B).


The temporary support order referred to is dated June 22, 1992,

and orders petitioner to pay $2,000 per month to his spouse;

however, the order makes no provision for nor imposes liability

on petitioner for payment of attorney's fees.    Thus, respondent's

reliance on the final judgment is misplaced.    Neither the

paragraph respondent cites nor any other aspect of the final

judgment designates petitioner's payment of Ms. Seyler's

attorney's fees as a payment that is not includable in gross

income and not allowable as a deduction under section 215.    Thus,

this provision of the final judgment does not support

respondent's contention.

     In order for petitioner's payment to be deductible as

alimony, petitioner's obligation to pay Ms. Seyler’s attorney's

fees would have had to terminate in the event of her death.    Sec.

71(b)(1)(D).   This requirement may be met either by the terms of

the divorce decree or by operation of State law.    Commissioner v.
                                - 9 -


Estate of Bosch, 387 U.S. 456, 465 (1967); Cunningham v.

Commissioner, T.C. Memo. 1994-474.      In this case, order No. 16 in

the final judgment stated:    "The Husband, shall, as an incidence

of support to the Wife, pay her attorney's fees, suit monies and

costs.    The Court specifically reserves jurisdiction for the

purpose of determining the amount of the fees, suit monies and

costs."    While this provision of the final decree does not

expressly state that the obligation survives the death of Ms.

Seyler, it does contemplate continuing jurisdiction by the court

on the matter.

     Additionally, under Florida law, petitioner's obligation to

pay the attorney's fees of Ms. Seyler would have continued after

her death.    In Canakaris v. Canakaris, 382 So. 2d 1197, 1201

(Fla. 1980), the Florida Supreme Court stated:


          Although the award of lump sum alimony is not dependent
     upon a finding of a prior vested right, there does arise
     upon the entry of a final judgment of a lump sum award a
     vested right which is neither terminable upon a spouse's
     remarriage or death nor subject to modification. It may
     consist of real or personal property, or may be a monetary
     award payable in installments. Jurisdiction may be
     expressly retained, however, to terminate lump sum alimony
     installment payments upon a spouse's remarriage or death
     when the parties agree to such a provision in a property
     settlement agreement. Further, jurisdiction may be retained
     to enter periodic alimony if found necessary after such
     termination of lump sum alimony installment payments. * * *


The Court has noted that the majority of State courts, including

those of Florida, have concluded that an award of attorney's fees
                              - 10 -


remains viable and enforceable notwithstanding the death of one

spouse before entry of a final divorce decree.   Berry v.

Commissioner, T.C. Memo. 2000-373 (citing Hirsch v. Hirsch, 519

So. 2d 1056 (Fla. Dist. Ct. App. 1988)), affd. 36 Fed. Appx. 400

(10th Cir. 2002).   Pursuant to Florida domestic relations law, a

trial court in Florida can retain jurisdiction to dispose of a

claim for attorney's fees.   Fla. Stat. Ann. sec. 61.16 (West

1997).   Florida courts have affirmed the policy that obligations

to pay attorney's fees of a former spouse stemming from the

divorce should survive the death of the payee.   Faust v. Faust,

553 So. 2d 1275 (Fla. Dist. Ct. App. 1989) (the purpose of Fla.

Stat. Ann. sec. 61.16 is to ensure that both parties to the

dissolution action had similar ability to secure competent legal

counsel); Steinberg, Wohl & Merlin, P.A. v. Leyman, 524 So. 2d

503, 505 (Fla. Ct. App. 1988) ("in the case of attorney's fees

the need therefor is not extinguished by a spouse's death;

whereas in the case of alimony for the decedent or other such

claim, death obviates the necessity therefor"); Hirsch v. Hirsch,

supra at 1057 ("There is no logical reason why the wife's

untimely demise should relieve the husband of an obligation which

as a matter of policy and justice he ought to bear.").

     On the basis of Florida law, as well as the policy

underlying awards of attorney's fees in divorce actions, the

Court concludes that the Supreme Court of Florida would hold that
                              - 11 -


petitioner would have remained liable for the attorney's fees

that the State court awarded to Ms. Seyler even if she had died

before entry of a final divorce decree.    Commissioner v. Estate

of Bosch, supra; Berry v. Commissioner, supra; Adler v. Adler,

418 So. 2d 1007 (Fla. Dist. Ct. App. 1982).   The requirement of

section 71(b)(1)(D) has not been met.   Respondent is sustained on

this issue.

     The second issue is whether petitioner is liable for the

addition to tax under section 6651(a)(1) for failing to file a

timely return for the year 1995.    Section 6651(a)(1) provides for

an addition to tax if a tax return is not filed timely unless the

taxpayer establishes that the failure to file did not result from

willful neglect and that the failure to file was due to

reasonable cause.   Reasonable cause generally requires a taxpayer

to demonstrate that he or she exercised ordinary business care or

prudence.   Sec. 301.6651-1(c)(1), Proced. & Admin. Regs.   Willful

neglect has been construed to mean a conscious, intentional

failure or reckless indifference.    United States v. Boyle, 469

U.S. 241, 245-246 (1985).

     Section 7491(c) places the burden of production on the

Commissioner in court proceedings with respect to the liability

of any individual for any penalty, addition to tax, or additional
                                - 12 -


amount imposed.6    Once the Commissioner meets this initial burden

of production to show that the imposition of an addition to tax

or penalty is appropriate, the taxpayer bears the burden of

proving his failure to file timely the required return did not

result from willful neglect and that the failure was due to

reasonable cause.    Higbee v. Commissioner, 116 T.C. at 447.

Taking the extension into account, the due date for filing

petitioner's 1995 tax return was August 15, 1996.    The return was

filed August 27, 1997.    On this record, the Court concludes that

respondent produced sufficient evidence to show that the section

6651(a)(1) addition to tax is appropriate.

     Petitioner cited a variety of reasons for not filing timely,

including his belief that he had overpaid his 1995 tax liability

through withholdings, reliance on an income tax adviser, chronic

depression, and "estoppel, waiver, that sort of thing", stemming

from his bankruptcy.    However, the evidence in the record is

insufficient to absolve petitioner of liability on the basis of

the reasons he cited.    In fact, petitioner was aware of his tax

obligations, as evidenced by a timely filed Form 4868,

Application for Automatic Extension of Time to File U.S.

Individual Income Tax Return.    See Radde v. Commissioner, T.C.

Memo. 1997-490.    Further, petitioner was mistaken in his belief


     6
          Because the examination of petitioner's return
commenced after July 22, 1998, sec. 7491 applies.
                              - 13 -


that he had overpaid through withholdings; his 1995 return showed

tax due of $27,982.   Finally, he did not establish depression as

reasonable cause.   See Farley v. Commissioner, T.C. Memo. 1993-31

(depression or emotional illness as a defense to the addition to

tax for delinquent filing does not apply unless the taxpayer

shows that he was incapable of exercising ordinary business care

and prudence during the period).   Petitioner has not shown that

his failure to file a timely return for 1995 was due to

reasonable cause or did not result from willful neglect.

Respondent is sustained on this issue.

     Reviewed and adopted as the report of the Small Tax Case

Division.


                                         Decision will be entered

                                    under Rule 155.
