                  T.C. Summary Opinion 2004-17



                     UNITED STATES TAX COURT



               DONALD RICHARD LOWE, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 19506-02S.            Filed February 12, 2004.



     Donald Richard Lowe, pro se.

     Dustin M. Starbuck, for respondent.



     CARLUZZO, Special Trial Judge:   This case was heard pursuant

to the provisions of section 7463 of the Internal Revenue Code in

effect at the time the petition was filed.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for the year 2000.    The decision to be

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

should not be cited as authority.
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     Respondent determined a deficiency of $975 in petitioner’s

2000 Federal income tax.    The issue for decision is whether

petitioner is entitled to deduct as alimony certain payments made

during the year in issue to his former spouse.

Background

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

the time the petition was filed, petitioner resided in Lynchburg,

Virginia.

     On July 19, 1968, petitioner married Nancy Martin Lowe (Ms.

Lowe).   They have one child, Michael Dodd Lowe (Michael), born

January 27, 1976.   Michael is mentally and physically challenged.

     By Final Decree of Divorce dated July 25, 1995 (the divorce

decree), the Circuit Court for the County of Campbell, Virginia,

dissolved the marriage between petitioner and Ms. Lowe.    The

divorce decree incorporated by reference the terms of an

Agreement entered into by petitioner and Ms. Lowe, dated January

27, 1995 (the agreement).    Relevant for our purposes, the

agreement contains the following provision:

                       6.   SPOUSAL SUPPORT

          Upon the execution of this Agreement, Husband
     agrees to pay Wife $125.00 per week in spousal support,
     due and payable on Sunday of each week. Said payments
     shall continue as long as the Wife continues to care
     for the mentally retarded son of the parties, namely,
     Michael Dodd Lowe.
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The agreement does not contain a child support provision for

Michael.   The agreement further states that petitioner and Ms.

Lowe would each have joint custody of Michael, with primary

physical custody to Ms. Lowe.

     During the 2000 taxable year, Michael was in the physical

custody of Ms. Lowe, and in accordance with the agreement,

petitioner made payments totaling $6,500 to her (the payments).

     On his timely filed 2000 Federal income tax return,

petitioner claimed an alimony deduction for the payments.    In the

notice of deficiency, respondent disallowed the alimony deduction

upon the ground that the payments represent nondeductible child

support.

Discussion1

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

paid during the taxable year.   In general, a payment constitutes

alimony within the meaning of section 215 if the payment is made

in cash and meets the following four criteria:   (1) Such payment

is received by (or on behalf of) a spouse under a divorce or

separation instrument, (2) the divorce or separation instrument

does not designate such payment as a payment which is not

includable in gross income under this section and not allowable

as a deduction under section 215, (3) in the case of an


     1
        Because there are no disputes with respect to any factual
issues in this case, we need not consider the application of sec.
7491(a). Higbee v. Commissioner, 116 T.C. 438 (2001).
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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 (4) 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.   Secs. 71(b), 215(b).

     For Federal income tax purposes, however, alimony does not

include any part of a payment that the terms of the divorce

instrument fix as a sum payable for the support of the children

of the payor spouse.   Sec. 71(c)(1).   Thus, child support

payments are neither includable in income under section 71 nor

deductible under section 215.   Relevant for our purposes, an

amount is treated as fixed under section 71(c)(1) and thus

treated as child support if it will be reduced “on the happening

of a contingency specified in the instrument relating to a child

(such as attaining a specified age, marrying, dying, leaving

school, or a similar contingency)”. Sec. 71(c)(2)(A).    Temporary

regulations promulgated under section 71 make clear that for

purposes of section 71(c), “a contingency relates to a child of

the payor if it depends on any event relating to that child,

regardless of whether such event is certain or likely to occur.”
                                - 5 -

Sec. 1.71-1T(c), Q&A-17, Temporary Income Tax Regs., 49 Fed. Reg.

34451, 34456 (Aug. 31, 1984) (emphasis added).

     According to respondent, the payments are child support,

and, therefore, petitioner is not entitled to an alimony

deduction for making the payments.

     Petitioner points out that the payments fit within the

definition of alimony as set forth in section 71(b)(1):    (1) The

payments were made pursuant to a divorce decree; (2) the divorce

decree did not designate the payments as ones that are excluded

from treatment as alimony under section 71 and section 215; (3)

petitioner and Ms. Lowe were legally separated and not members of

the same household during the year 2000; and (4) petitioner was

not obligated to make the payments after Ms. Lowe’s death.

     Petitioner’s position, however, fails to take into account

the provision in the agreement that provides that the payments

are subject to termination in the event that Ms. Lowe does not

continue to care for Michael.   This contingency is clearly

related to petitioner’s son Michael.    Therefore, for Federal

income tax purposes, the payments are considered child support

and not alimony.   Respondent’s disallowance of petitioner’s

alimony deduction is, therefore, sustained.

     Reviewed and adopted as the report of the Small Tax

Division.
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To reflect the foregoing,

                                         Decision will be

                                    entered for respondent.
