                  T.C. Summary Opinion 2007-105



                      UNITED STATES TAX COURT



             RICHARD THOMAS WILLIAMS, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 11695-05S.               Filed June 25, 2007.


     Richard Thomas Williams, pro se.

     Lynn M. Curry, 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

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

for any other case.


     1
        Unless otherwise indicated, all subsequent section
references are to the Internal Revenue Code in effect for 2003.
                               - 2 -

     Respondent determined a deficiency in petitioner’s Federal

income tax for 2003 of $6,912 on the basis of the disallowance of

an alimony deduction for payments made to petitioner’s ex-wife.

The sole question presented in this case is whether those

payments met the definition of “alimony” under the Internal

Revenue Code.   We hold that the payments at issue were not

alimony and consequently, we hold for respondent.

                            Background

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

found.   We incorporate by reference the parties’ stipulation of

facts and accompanying exhibits.

     At the time the petition was filed, Richard Thomas Williams

(petitioner) resided in Jacksonville, Florida.

     Petitioner and Amy Williams (Ms. Williams or ex-wife) were

married in May 1976.   They separated in November 2002.

     Immediately following their separation, petitioner, a

retired U.S. Coast Guard (Coast Guard) officer, directed the

Coast Guard Finance Center that one-half of his monthly military

pension be paid to Ms. Williams.2   The money was to cover both

alimony and child support for the couple’s minor child.

Petitioner made these arrangements upon separating from Ms.

Williams as he thought he was required to do so under the terms



     2
        Petitioner retired from the military in 1998 and began
receiving his pension at that time.
                               - 3 -

of the Uniform Code of Military Justice (UCMJ).3   Under this

arrangement, petitioner paid Ms. Williams $27,652.41 in 2003.

     Petitioner and Ms. Williams began divorce proceedings in

2005 and entered into an official Marital Settlement Agreement

(MSA) in May 2006.   The MSA, later incorporated into the final

judgment of dissolution of marriage, specified that petitioner

was to pay $1,080 per month, plus annual cost of living

increases, to Ms. Williams as alimony.    The payments under the

MSA began April 1, 2005.

     Petitioner’s divorce became final in July 2006.

                            Discussion4

     Section 71(a) provides the general rule that alimony

payments are included in the gross income of the payee spouse;

section 215(a) provides the complementary general rule that

alimony payments are tax deductible by the payor spouse in “an

amount equal to the alimony or separate maintenance payments paid

during such individual’s taxable year.”

     The term “alimony” means any alimony as defined in section

71, the relevant provision of which explains:




     3
        The Uniform Code of Military Justice can be found at 10
U.S.C. Subtit. A, Part II, ch. 47 (2001).
     4
        As the issue for decision under these facts is
essentially legal in nature, we decide the instant case without
regard to the burden of proof.
                                - 4 -

          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 * * * 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.

     Both parties agree that petitioner’s payments to his ex-wife

satisfied the requirements set out in section 71(b)(1)(B), (C),

and (D).5   The parties do not agree, however, whether the


     5
        Respondent’s argument focuses on sec. 71(b)(1)(A), so we
merely note--it does not impact our holding--that it seems
inconsistent to concede that the divorce or separation agreement
in question does not designate a payment as being excluded from
the secs. 71 and 215 inclusion/deduction scheme when respondent’s
argument is that there is no divorce or separation agreement at
                                                   (continued...)
                               - 5 -

payments made in 2003 satisfied the requirement that alimony

payments be made under a divorce or separation instrument.6    See

sec. 71(b)(1)(A).

     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,

                (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.

     Respondent’s position is that neither the MSA nor the final

judgment of dissolution of marriage was in effect for 2003, the

year at issue; therefore, the payments were not made pursuant to

a divorce or separation instrument.    Petitioner argues that the

UCMJ required him to make arrangements to support Ms. Williams,

even in the absence of a court order or written separation

agreement.   If that were the case, the UCMJ might serve to meet

section 71(b)(2)(C) and function as a decree not otherwise


     5
      (...continued)
all for the year in issue.
     6
        As previously stated, petitioner paid Ms. Williams
$27,652.41 in 2003 to cover both alimony and child support for
the couple’s minor child. Payments to support children are not
deductible. Sec. 71(c). Respondent does not, however, invoke
that section, but argues instead that the payments in issue do
not satisfy the requirement of alimony as set forth in sec.
71(b)(1)(A).
                                 - 6 -

described in subparagraph (A).    But, despite his honorable

intentions, petitioner cites no authority, and we are aware of

none, subjecting a retired military officer receiving only a

military pension to the UCMJ.7

     At trial, we found petitioner to be very straightforward and

honest; we are convinced that petitioner felt he was doing what

was morally required of him.     Unfortunately, the Internal Revenue

Code is very specific in its requirements, and petitioner’s

payments to his ex-wife in 2003 did not meet the requirement

outlined in section 71(b)(1)(A).    Accordingly, we must hold that,

in the instant case, petitioner’s payments made to his ex-wife in

2003 did not satisfy the conditions set forth in section 71 and

are thus not properly deductible as alimony for the taxable year

in issue.

     To reflect our disposition of the disputed issue,

                                           Decision will be entered

                                      for respondent.




     7
        Similarly, petitioner cited no authority, and we are
aware of none, subjecting a retired Coast Guard officer to the
provisions of the Coast Guard Personnel Manual, available at
http://www.uscg.mil.hq.cgpc/home/PERSMAN.pdf.
