                  T.C. Summary Opinion 2007-205



                      UNITED STATES TAX COURT



               BRYAN DOUGLAS EMMEL, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 23348-06S.             Filed December 6, 2007.



     Bryan Douglas Emmel, pro se.

     David L. Zoss, for respondent.



     HAINES, 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 other court, and




     1
       Unless otherwise indicated, all section references are to
the Internal Revenue Code, as amended, and Rule references are to
the Tax Court Rules of Practice and Procedure. Amounts are
rounded to the nearest dollar.
                                - 2 -

this opinion shall not be treated as precedent for any other

case.

     Respondent determined a deficiency in petitioner’s 2004

Federal income tax of $1,515.   The issue for decision is whether

petitioner is entitled to a $10,080 alimony deduction under

section 215(a) for 2004.

                           Background

     The parties’ stipulation of facts and the attached exhibits

are incorporated herein by this reference.    Petitioner resided in

Fergus Falls, Minnesota, when he filed his petition.

     Petitioner and Deborah Emmel were married on October 9,

1982, and had a daughter, SE, born in 1986.   In January 2002,

petitioner and Deborah Emmel separated and began living apart.

Deborah Emmel retained custody of SE. During 2004, petitioner

deposited monthly amounts totaling $16,800 into a joint bank

account he held with his wife, from whom he was still separated.



     On May 18, 2004, petitioner’s attorney signed a petition for

dissolution of marriage on petitioner’s behalf.   Neither

petitioner nor his attorney filed the May 18, 2004, petition with

the State of Minnesota district court (district court).     Further,

the May 18, 2004, petition was not signed by petitioner or

Deborah Emmel and did not provide for spousal or child support.
                                 - 3 -

      Petitioner timely filed his Form 1040, U.S. Individual

Income Tax Return, for 2004 (2004 return) as head of household,

claiming $10,080 of the $16,800 deposited in the joint bank

account was alimony paid to Deborah Emmel.

      On April 14, 2006, petitioner filed a petition for

dissolution of marriage with the district court.      The marriage

was dissolved on May 15, 2006.    The district court’s conclusions

of law with respect to the dissolution of marriage stated Deborah

Emmel voluntarily waived her right to obtain maintenance.

      On October 13, 2006, respondent issued a notice of

deficiency denying petitioner’s deduction for alimony paid of

$10,080 claimed on the 2004 return.      Petitioner timely filed his

petition with this Court on November 14, 2006.

                             Discussion

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

deduction the amount equal to the alimony or separate maintenance

payments paid during the individual’s taxable year.      The term

“alimony or separate maintenance payment” means any alimony or

separate maintenance payment (as defined in section 71(b)) which

is includable in the gross income of the recipient under section

71.   Sec. 215(b).   An alimony or separate maintenance payment is

any payment in cash that satisfies the four requirements listed

under section 71(b)(1).   Sec. 71(b).     The first requirement is

that the payment be received by or on behalf of a spouse under a
                                - 4 -

divorce or separation instrument.   Sec. 71(b)(1)(A).    Section

71(b)(2) defines a divorce or separation instrument as a decree

of divorce or a written instrument incident to such a decree, a

written separation agreement, or a decree requiring a spouse to

make payments for the support or maintenance of the other spouse.

     A divorce or separation agreement must be made in writing.

Herring v. Commissioner, 66 T.C. 308, 311 (1976).     The writing

requirement does not, however, specify the medium which may be

used nor the form the writing must take.     Leventhal v.

Commissioner, T.C. Memo. 2000-92; Ellis v. Commissioner, T.C.

Memo. 1990-456; Osterbauer v. Commissioner, T.C. Memo. 1982-266.

A payment made pursuant to an oral agreement is not a payment

made pursuant to a divorce or separation instrument unless there

is some type of written instrument memorializing the agreement.

Herring v. Commissioner, supra; Osterbauer v. Commissioner,

supra.   Petitioner bears the burden of proving respondent’s

determinations are incorrect.   See Rule 142(a).

     Petitioner and Deborah Emmel did not execute a written

agreement providing for alimony or maintenance.     Petitioner

testified that the monthly payments to Deborah Emmel in 2004 were

made pursuant to an oral agreement.     Petitioner also testified

that there was no court order in effect for 2004 requiring him to

pay alimony.   The only evidence petitioner submitted was a copy

of his petition for divorce, signed by his attorney, which did
                                 - 5 -

not provide for support or maintenance payments.       The petition is

not sufficient to establish a divorce or separate maintenance

instrument.

     For the foregoing reasons, the Court finds that the total of

$10,080 transferred to Deborah Emmel during 2004 was not paid

under a divorce or separation instrument as required under

section 71(b)(1)(A).   Therefore, petitioner is not entitled to a

$10,080 alimony deduction under section 215 for 2004.       Having

concluded that petitioner is unable to meet the first of the four

requirements of section 71(b)(1), the Court finds it unnecessary

to consider the remaining three.

     In reaching this holding, the Court has considered all

arguments made and, to the extent not mentioned, concludes that

they are moot, irrelevant, or without merit.

     To reflect the foregoing,


                                         Decision will be entered

                                 for respondent.
