                                  T.C. Memo. 2014-151



                            UNITED STATES TAX COURT



      JOSEPH PEERY AND DAWN SHANNON CHAPEL, Petitioners v.
         COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 600-12.                               Filed July 29, 2014.



      Daniel J. Picard, for petitioners.

      Edward Lee Walter, for respondent.



               MEMORANDUM FINDINGS OF FACT AND OPINION


      RUWE, Judge: Respondent determined an $18,369 deficiency in

petitioners’ 2008 Federal income tax and a $3,673.80 accuracy-related penalty

under section 6662(a).1 The issues for decision are: (1) whether a $63,500


      1
          Unless otherwise indicated, all section references are to the Internal
                                                                           (continued...)
                                         -2-

[*2] payment Joseph Peery (petitioner) made to Katrina H. Peery (Ms. Peery) on

July 23, 2008, was alimony or a property settlement; and (2) whether petitioners

are liable for an accuracy-related penalty under section 6662(a) for a substantial

understatement of income tax.

                                FINDINGS OF FACT

      Some of the facts have been stipulated and are so found. The stipulation of

facts and the attached exhibits are incorporated herein by this reference.

      Petitioners resided in Ohio at the time they filed their petition.

      Petitioner married Ms. Peery on May 21, 1971. Ms. Peery was granted a

divorce from petitioner on June 9, 2008, pursuant to a decree of divorce issued by

the Court of Common Pleas, Richland County, Ohio, Division of Domestic

Relations (Court of Common Pleas). The Court of Common Pleas incorporated

into the decree of divorce a separation agreement entered into between petitioner

and Ms. Peery. The separation agreement, dated June 6, 2008, addressed

numerous issues, including the division of marital assets and spousal support to be

paid by petitioner to Ms. Peery.




      1
       (...continued)
Revenue Code (Code) in effect for the year in issue, and all Rule references are to
the Tax Court Rules of Practice and Procedure.
                                        -3-

[*3] Paragraph 1 of the separation agreement sets forth certain items of

“property” that Ms. Peery “shall have as her own, free and clear of all claims of

* * * [petitioner].” As part of her property rights, subparagraph 1(I) of the

separation agreement assigns to Ms. Peery “[a]n award of property settlement in

the sum of $63,500.00, which amount shall be paid within thirty (30) days” of

June 6, 2008. Further, in order to “equalize the division of marital assets” between

petitioner and Ms. Peery, paragraph 5 of the separation agreement provides Ms.

Peery with an additional property settlement of $85,723.

      Paragraph 2 of the separation agreement provides that “spousal support” is

to be paid by petitioner to Ms. Peery “until such time as she remarries, is deceased

or * * * [petitioner] is deceased.” Paragraph 2 of the separation agreement states,

in relevant part:

      A.     Spousal support shall be equal to 40% of all income earned by
             * * * [petitioner]. Income shall include, but not be limited to
             the following:

             1.     All wages and/or renumeration [sic] for employment.
                    Such wages, for the purposes of calculating amounts due
                    as spousal support shall not be reduced for any voluntary
                    or mandatory deductions for contributions to retirement
                    plans or deferred compensation plans, taxes (except as
                    provided hereinafter in this paragraph) health insurance
                    premiums or other deductions. Provided, however,
                    mandatory deductions from income for Social Security,
                    Medicare taxes, city income and school district taxes
                                         -4-

                   [*4] shall be deducted in arriving at the income amount
                   to be utilized for the support calculation.

             2.    All net self-employment income earned as a director,
                   consultant, advisor, speaker or income for honorarians
                   [sic], or any other form of self-employment income
                   earned as an independent contractor.

             3.    All guaranteed payments or other income from past-
                   through [sic] tax entities, including, but not limited to,
                   partnerships, Sub-Chapter S Corporations, or limited
                   liabilities companies or any other self-employment
                   income.

      Furthermore, paragraph 4 of the separation agreement assigns petitioner

various properties, including:

      E.     All financial institution accounts in his individual name.

      F.     All right, title and interest * * * [petitioner] owns in the
             following legal entities, to wit:

             (1) Hamilton Safe Company - 2 shares
             (2) Hamilton Finetech Electronics - 15 shares
             (3) K/H Enterprises, Inc. - 5 shares
             (4) Hamilton Systems, Inc. - 9 shares

      Petitioner married Dawn Shannon Chapel after his divorce from Ms. Peery.

Throughout the 2008 tax year, petitioner made various payments from his Fifth

Third Bank checking account to Ms. Peery. On each check petitioner wrote a

notation indicating that the payment was for spousal support. From January to

July 2008 petitioner made payments to Ms. Peery as follows:
                                          -5-

[*5]         Check No.             Date                 Amount

                1017            1/10/2008              $4,300.00
                1019            2/14/2008               4,300.00
                1025            3/10/2008               4,300.00
                1027            4/14/2008               4,300.00
                1031            5/15/2008               4,300.00
                1033            6/15/2008               4,944.33
                1039            7/23/2008                 321.34
                Total                                  26,765.67

       In addition to the above payments, petitioner wrote a $63,500 check--check

No. 1040--payable to Ms. Peery and dated July 23, 2008. The words “Spousal

Support” are crossed out from the handwritten notation on the check. The total of

all foregoing payments is $90,265.67,2 and represents the amount of deductible

alimony petitioners claimed on their 2008 Federal income tax return.

       Although not claimed by petitioners as alimony in their 2008 tax return,

petitioner paid to Ms. Peery $3,761 by check dated September 2, 2008. The

$3,761 check bears an electronic notation “SPOUSAL SUPPORT”.

       On November 5, 2008, the Court of Common Pleas issued a qualified

domestic relations order pursuant to the separation agreement, directing National



       2
        There is a $1.67 discrepancy between the amount petitioners claimed on
their 2008 tax return ($90,264) and the total of checks 1017, 1019, 1025, 1027,
1031, 1033, 1039, and 1040 ($90,265.67). Petitioners did not explain this
discrepancy.
                                        -6-

[*6] Financial Services, the trustee of petitioner’s individual retirement account

(IRA), to transfer $85,723 to Ms. Peery from petitioner’s IRA.

      Petitioners timely filed their 2008 Federal income tax return. On the return,

petitioners claimed a deduction from gross income of $90,264 for alimony paid to

Ms. Peery during the 2008 tax year.

      On October 12, 2011, respondent issued to petitioners a notice of deficiency

for 2008.3 Petitioners timely filed a petition disputing the determinations in the

notice of deficiency.

                                      OPINION

      As a general rule, the Commissioner’s determinations in the notice of

deficiency are presumed correct, and the taxpayers bear the burden of proving that

the determinations are in error. Rule 142(a); Welch v. Helvering, 290 U.S. 111,

115 (1933). Deductions are a matter of legislative grace, and the taxpayers bear

the burden of proving that they are entitled to the claimed deductions. INDOPCO,

Inc. v. Commissioner, 503 U.S. 79, 84 (1992); New Colonial Ice, Co. v.

Helvering, 292 U.S. 435, 440 (1934).




      3
        In the notice of deficiency, respondent also made a $687 adjustment to
petitioners’ 2008 income tax return. The parties stipulate that this adjustment is
“computational in nature” and therefore is not at issue in the instant proceeding.
                                       -7-

[*7] 1. Property Settlement/Alimony

      The primary issue is whether petitioner’s payment of $63,500 to Ms. Peery

on July 23, 2008, was alimony or a property settlement. Petitioners contend that

the payment is alimony and thus properly deductible against their 2008 gross

income. Respondent argues that the payment to Ms. Peery does not meet the

Code’s definition of alimony.

      Section 215(a) allows an individual taxpayer a deduction for alimony or

separate maintenance payments paid during the taxpayer’s taxable year. For

purposes of section 215, “‘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).

      Section 71(b)(1) sets forth a four-pronged inquiry for determining whether a

payment constitutes alimony or separate maintenance. Section 71(b)(1) provides:

           (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,
                                         -8-

             [*8] (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.

“The foregoing requirements are conjunctive; a payment is deductible alimony

only if all four requirements of section 71(b)(1) are satisfied.” Sa’d v.

Commissioner, T.C. Memo. 2012-348, at *9.

      Respondent concedes that the $63,500 payment to Ms. Peery satisfies the

provisions of section 71(b)(1)(C) and (D). However, respondent argues that the

payment does not meet the requirements set forth in section 71(b)(1)(A) and (B).

In order to resolve this dispute, we need only determine whether the payment at

issue fails to satisfy one of the four requirements set forth in section 71(b)(1).

Accordingly, our determination of whether the payment at issue is deductible as

alimony under section 215 will begin with an analysis under the requirement of

section 71(b)(1)(B).

      Section 71(b)(1)(B) provides that, in order to be considered deductible

alimony, “the divorce or separation instrument does not designate such payment as
                                        -9-

[*9] a payment which is not includible in gross income under this section and not

allowable as a deduction under section 215”. Generally, property settlements

incident to a divorce are not taxable events and do not give rise to deductions or

recognizable income. See sec. 1041; Estate of Goldman v. Commissioner, 112

T.C. 317, 323 (1999), aff’d without published opinion, 242 F.3d 390 (10th Cir.

2000); Springer v. Commissioner, T.C. Memo. 2003-221, 2003 Tax Ct. Memo

LEXIS 220, at *13; Zampini v. Commissioner, T.C. Memo. 1991-395, 1991 Tax

Ct. Memo LEXIS 460, at *11. Respondent argues that the $63,500 payment is a

property settlement. Petitioners argue that the payment constitutes alimony.

      The plain language of the separation agreement states that petitioner was

obligated to make a $63,500 payment to Ms. Peery as a property settlement. The

separation agreement addresses two distinct categories: (1) a division of marital

assets as a property settlement, and (2) an ongoing obligation on behalf of

petitioner to provide spousal support to Ms. Peery. Paragraph 1 of the separation

agreement includes nine provisions detailing “property” that Ms. Peery will “have

as her own, free and clear of all claims of * * * [petitioner]”. The provision

requiring the payment of $63,500 from petitioner to Ms. Peery is among these nine

provisions, located in subparagraph 1(I) of the separation agreement, alongside

other marital property assigned to Ms. Peery. Moreover, subparagraph 1(I)
                                       - 10 -

[*10] specifically states that the $63,500 payment is “[a]n award of property

settlement”. (Emphasis added.)

      Furthermore, the $63,500 lump-sum payment on July 23, 2008, is the exact

amount of the property settlement specified in the separation agreement. Unlike

petitioner’s continuing obligation to make periodic spousal support payments, the

$63,500 payment appears as a one-time transaction that was required to be paid

within 30 days of the execution of the separation agreement.4 This payment is

consistent with petitioner’s obligation to make a $63,500 payment on one isolated

occasion, within a condensed timeframe subsequent to the termination of

marriage. See Hopkinson v. Commissioner, T.C. Memo. 1999-154, 1999 Tax Ct.

Memo LEXIS 189, at *12-*14.

      Petitioners nevertheless contend that the $63,500 property settlement

mandated by the separation agreement had been paid to Ms. Peery in another

transaction, and that the $63,500 payment made on July 23, 2008, represents a

separate and distinct payment of alimony resulting from the sale of petitioner’s

stock (i.e., Hamilton Safe Co., Hamilton Finetech Electronics, KH Enterprises, and

Hamilton Systems, Inc.). Petitioner testified that he paid Ms. Peery the $63,500



      4
        The $63,500 payment was made on July 23, 2008, which was only 17 days
after the date required in the separation agreement.
                                       - 11 -

[*11] property settlement using a U.S. Bank Equiline account held jointly in name

by himself and Ms. Peery. According to the testimony of petitioner, the July 23,

2008, check for $63,500 was not in satisfaction of the property settlement detailed

in the separation agreement, but rather arose from his ongoing obligation of

spousal support (i.e., 40% of the long-term capital gain resulting from the sale of

his employee stock).

      In support of their contention, petitioners provided a U.S. Bank Equiline

account statement showing a transaction summary from May 2008 to January

2010. The transaction summary shows a principal account balance of $56,405.88

as of December 31, 2009, and numerous monthly payments in 2008, including:

               Date               Description               Amount

              5/25/08          Automatic Payment            $248.36
              6/25/08          Automatic Payment             246.94
              7/25/08          Automatic Payment             245.52
              8/25/08          Automatic Payment             244.08
              9/25/08          Automatic Payment             242.67
             10/25/08          Automatic Payment             241.28
             11/25/08          Automatic Payment             239.86
             12/25/08          Automatic Payment             238.36

               Total                                        1,947.07

      The U.S. Bank Equiline account statement provides no support for

petitioners’ position. Although the separation agreement required petitioner to pay
                                         - 12 -

[*12] a property settlement of $63,500 to Ms. Peery before July 6, 2008, the

monthly payments shown on the U.S. Bank Equiline account statement occurring

before July 6, 2008, total a mere fraction of the amount petitioner was required to

pay. Furthermore, it is impossible to determine whether the automatic payments

listed on the account statement were provided to Ms. Peery in satisfaction of the

property settlement. Accordingly, petitioners have failed to prove that an earlier

payment of $63,500 was made to Ms. Peery in satisfaction of petitioner’s property

settlement obligation.

      We find that the $63,500 payment is a property settlement, not alimony.

Accordingly, the payment does not satisfy the requirement set forth in section

71(b)(1)(B), and therefore is not deductible as alimony from petitioners’ 2008

gross income under section 215.

      Petitioners also contend that the $3,761 check from petitioner to Ms. Peery,

dated September 2, 2008, is deductible alimony. Although the $3,761 payment

was not claimed as a deduction on their 2008 tax return, petitioners raised this

issue (1) in their petition to this Court, (2) at trial, and (3) in their brief. Nowhere

does respondent specifically dispute that petitioner wrote the $3,761 check to Ms.

Peery or that this amount is alimony. Respondent addresses the $3,761 payment in

his brief as follows:
                                          - 13 -

      [*13] 24. On September 2, 2008, the petitioner made an additional
      claimed spousal support payment to Katrina Peery through Fifth
      Third Bank totaling $3,791.00 [sic], which amount was not claimed
      as alimony on the petitioner’s 2008 Federal Income Tax Return, but
      which was claimed at trial and included in the total amounts in the
      petitioners’ Trial Memo.

            25. The petitioner wrote notations in the Memo field on all
      checks, except for the September check for $3,791.00 [sic], which he
      gave to Katrina Peery and claimed as alimony. He wrote the month,
      year and the divorce proceeding case number and the notation of
      “spousal support”.
            [Citations omitted.]

      Respondent, however, does not specifically address the $3,761 payment or

explain why petitioners are not entitled to deduct this amount as alimony.5 The

$3,761 check bears the electronic notation “SPOUSAL SUPPORT”. Accordingly,

based on the record before us, there is nothing to contradict petitioner’s testimony

that the $3,761 payment is deductible to petitioners as alimony. We find that the

$3,761 payment is deductible alimony.

2. Accuracy-Related Penalty

      Respondent determined that petitioners are liable for a section 6662(a)

accuracy-related penalty of $3,673.80 for the 2008 tax year.6 Section 6662(a) and


      5
      In his brief respondent concludes that “petitioner did not make deductible
alimony payments in excess of $26,766.00 during 2008.”
      6
          In their brief petitioners do not address the sec. 6662(a) accuracy-related
                                                                           (continued...)
                                         - 14 -

[*14] (b)(1) and (2) permits the application of an accuracy-related penalty in the

amount of 20% to any portion of an underpayment which is attributable to, among

other things, negligence or intentional disregard of the rules or regulations or any

substantial understatement of income tax. A substantial understatement of income

tax exists when a taxpayer’s understatement for the taxable year exceeds the

greater of 10% of the tax required to be shown on the return or $5,000. Sec.

6662(d)(1)(A).

      The Commissioner bears the burden of production concerning the

imposition of penalties and must provide sufficient evidence indicating that it is

appropriate to impose the penalty. See sec. 7491(c); Higbee v. Commissioner, 116

T.C. 438, 446 (2001). Once the Commissioner satisfies his burden of production,

the burden of proof remains with the taxpayers, including the burden of proving

that the penalty is improper due to reasonable cause. Rule 142(a); Higbee v.

Commissioner, 116 T.C. at 446-447.

      Petitioners’ deficiency in income tax for the taxable year 2008 is $18,369.

Even with the allowance of an additional deduction of $3,761 as alimony,7 the


      6
       (...continued)
penalty.
      7
          The $3,761 alimony deduction will need to be reflected in the parties’ Rule
                                                                        (continued...)
                                        - 15 -

[*15] understatement of income tax exceeds the greater of 10% of the tax required

to be shown on petitioners’ return or $5,000. Therefore, petitioners’

understatement is substantial. Respondent has met his burden of production by

showing that petitioners improperly deducted from their 2008 gross income the

property settlement of $63,500. See Bronstein v. Commissioner, 138 T.C. 382,

387-388 (2012).

      Section 6664(c)(1) provides that the penalty under section 6662(a) shall not

apply to any portion of an underpayment if it is shown that there was reasonable

cause for the taxpayers’ position and that the taxpayers acted in good faith with

respect to that portion. See Higbee v. Commissioner, 116 T.C. at 448. The

determination of whether the taxpayers acted with reasonable cause and in good

faith is made on a case-by-case basis, taking into account all the pertinent facts

and circumstances. Sec. 1.6664-4(b)(1), Income Tax Regs. Petitioners have the

burden of proving that the penalty is inappropriate because of reasonable cause

under section 6664. See Rule 142(a); Higbee v. Commissioner, 116 T.C. at 446-

447. Petitioners have failed to prove that the penalty is inappropriate because of

reasonable cause. Accordingly, we hold that petitioners are liable for the



      7
      (...continued)
155 computations.
                                       - 16 -

[*16] accuracy-related penalty under section 6662(a) for their substantial

underpayment of tax for the 2008 tax year.

      In reaching our decision, we have considered all arguments made by the

parties, and to the extent not mentioned or addressed, they are irrelevant or

without merit.

      To reflect the foregoing,


                                                           Decision will be entered

                                                    under Rule 155.
