                  T.C. Memo. 1998-53



                UNITED STATES TAX COURT



     DEWEY AND CARLENA K. HAMMOND, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 5822-97.                 Filed February 10, 1998.



     R filed a motion, and Ps filed a cross-motion, for
partial summary judgment on the issue of whether
certain payments made by P-H to a former spouse during
taxable years 1993, 1994, and 1995 constitute
deductible alimony pursuant to sec. 215(a), I.R.C., or
are instead nondeductible child support within the
meaning of sec. 71(c), I.R.C. Held: R's motion for
partial summary judgment granted, and Ps' cross-motion
for partial summary judgment denied, Rule 121(b), Tax
Court Rules of Practice and Procedure; the payments at
issue are treated as fixed for child support and are
therefore nondeductible to Ps. Sec. 71(c)(2), I.R.C.



Joseph M. Seigler, Jr., for petitioners.

Clinton M. Fried, for respondent.
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                          MEMORANDUM OPINION

     NIMS, Judge:    This matter is before the Court on

respondent's motion, and petitioners' cross-motion, for partial

summary judgment filed pursuant to Rule 121 on August 28, 1997,

and September 29, 1997, respectively.

     Unless otherwise indicated, all section references are to

sections of the Internal Revenue Code in effect for the years at

issue.   All Rule references are to the Tax Court Rules of

Practice and Procedure.

     Respondent determined the following deficiencies and

accuracy-related penalties with respect to the Federal income tax

of petitioners, Dewey and Carlena K. Hammond, for the taxable

years 1993, 1994, and 1995:

                                                 Penalty
            Year           Deficiency          Sec. 6662(a)

            1993           $9,888              $1,978
            1994            9,028               1,806
            1995            7,339               1,468

     As a result of concessions made subsequent to the motion and

cross-motion for partial summary judgment, the parties now agree

that this case may be resolved in its entirety via summary

judgment.    The sole remaining issue for decision is whether

certain monthly payments of $2,000 made by Dewey Hammond (herein

Dewey or petitioner) to his former spouse, Rebecca Hammond

(Rebecca), during each of the years in issue pursuant to a
                               - 3 -

divorce decree are deductible alimony payments or, in the

alternative, nondeductible child support payments.

     Petitioners resided in Rome, Georgia, at the time they filed

their amended petition.

                            Background

     The background facts related below are derived from the

pleadings in this case, affidavits filed by both respondent's

counsel and petitioner, the exhibits attached thereto, and the

uncontroverted written representations of the parties.

     Dewey and Rebecca had one child, Justin Joel Hammond

(Justin), who was born in July 1985.     In September 1988, Rebecca

brought an action for divorce in the Superior Court of Gordon

County, Georgia (Superior Court); a jury verdict was subsequently

rendered.   A "Final Judgment and Decree" of divorce (Judgment)

incorporating the jury verdict was entered by the Superior Court

on October 31, 1988.

     Paragraph 1 of the Judgment awarded Rebecca semimonthly

child support payments for Justin of $575, or $1,150 per month,

until Justin attained 18 years of age, died, married, or joined

the military.

     Paragraph 2 of the Judgment provides as follows:

                              ALIMONY

          Upon said jury verdict, IT IS ORDERED, DECREED and
     ADJUDGED that the defendant DEWEY HAMMOND, III, pay to
     REBECCA HAMMOND the sum of $2,000.00 per month as
     alimony commencing October 1, 1988, and ending on
     JUSTIN JOEL HAMMOND'S eighteenth birthday, or at the
                               - 4 -

     time of remarriage of REBECCA HAMMOND, whichever comes
     first. [Emphasis added.]

     The payments designated for child support in paragraph 1 of

the Judgment were modified pursuant to an August 13, 1993, order

of the Superior Court of Floyd County, Georgia.    The semimonthly

payments were increased to $1,006.25, or $2,012.50 per month.

     At all times during the years in dispute, petitioner made

alimony and child support payments in accordance with the terms

of the Judgment by separate check.     Each check was clearly marked

either "alimony" or "child support" on its bottom left corner.

     Petitioners jointly filed Forms 1040, U.S. Individual Income

Tax Return, for taxable years 1993, 1994, and 1995.    Petitioners

deducted as alimony on each return the total yearly payments of

$24,000 made to Rebecca pursuant to the terms of paragraph 2 of

the Judgment.   Respondent disallowed these deductions in their

entirety.

     In addition to the foregoing and the adjustments conceded by

petitioners, respondent determined that petitioners were liable

for accuracy-related penalties for negligence pursuant to section

6662(a) for those years.   During a telephone conference call

between the parties and the Court held on October 10, 1997,

respondent conceded that petitioners are not liable for the

section 6662(a) accuracy-related penalties for the years in

dispute.
                                - 5 -

                             Discussion

     A motion for summary judgment may be granted if the

pleadings and other materials demonstrate that no genuine issue

of material fact exists and the decision can be rendered as a

matter of law.   Rule 121(b).   As noted above, the parties agree

that this case may be resolved by summary judgment, and we are

satisfied that no genuine issue exists as to any of the material

facts.   We proceed accordingly.

     Section 215(a) allows as a deduction to the payor an amount

equal to the alimony or separate maintenance payments made during

the payor's taxable year that are includable in the recipient's

gross income under section 71(a).   Whether a payment constitutes

alimony or separate maintenance within the meaning of sections

71(a) and 215(a) is determined by reference to section 71(b).

     Section 71(b) defines an alimony or separate maintenance

payment as follows:

          (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
                              - 6 -

               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

                    (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.

     Section 71(c), relating to payments to support children,

provides in relevant part:

          (c) Payments to Support Children.--

               (1) In general.--Subsection (a) shall not
          apply to that part of any payment which the terms
          of the divorce or separation instrument fix (in
          terms of an amount of money or a part of the
          payment) as a sum which is payable for the support
          of children of the payor spouse.

               (2) Treatment of certain reductions related
          to contingencies involving child.--For purposes of
          paragraph (1), if any amount specified in the
          instrument will be reduced--

                    (A) 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), or

                    (B) at a time which can clearly be
               associated with a contingency of a kind
               specified in subparagraph (A),
                               - 7 -

          an amount equal to the amount of such reduction
          will be treated as an amount fixed as payable for
          the support of children of the payor spouse.


     Thus, under section 71(c), if under the terms of the divorce

or separation instrument any amount specified in the instrument

will be reduced on the happening of a contingency relating to a

child, including the child's attaining a specified age, an amount

equal to the amount of the reduction will be treated as child

support and will not qualify as alimony.

     In the case before us, we have no difficulty in concluding

that the Judgment's termination of the $2,000 monthly payments to

Rebecca coinciding with Justin's eighteenth birthday is precisely

the kind of contingency contemplated by the statute, which

renders payments of the kind under scrutiny ineligible for

treatment as alimony.   We reached the same conclusion in Fosberg

v. Commissioner, T.C. Memo. 1992-713, involving an almost

identical "contingency".   In addition, if further support for

this conclusion were needed, section 1.71-1T(c), Q&A-16,

Temporary Income Tax Regs., 49 Fed. Reg. 34456 (Aug. 31, 1984),

provides, among other things, that

     A payment will be treated as fixed as payable for the
     support of a child of the payor spouse if the payment is
     reduced (a) on the happening of a contingency relating to a
     child of the payor, or (b) at a time which can clearly be
     associated with such a contingency. A payment may be
     treated as fixed as payable for the support of a child of
     the payor spouse even if other separate payments
                               - 8 -

     specifically are designated as payable for the support of a
     child of the payor spouse.

     In opposition to respondent's motion, and in support of

their cross-motion, petitioners argue that the contested payments

are alimony rather than child support inasmuch as petitioner was

also required to make separately allocated, fixed payments for

child support under the terms of paragraph 1 of the Judgment

during the years at issue.   Petitioners maintain that section

71(c)(2) should not operate to "convert alimony payments to child

support when child support payments are already fixed in

accordance with section 71(c)(1)."     Petitioners cite no authority

in support of this proposition, and we have found none.

     We are satisfied that the contested payments in 1993, 1994,

and 1995 constitute nondeductible child support for Federal tax

purposes, notwithstanding the fact that the Judgment labeled such

payments "alimony" and the fact that the payments in question

appear to have met all of the definitional requirements of

section 71(b).   See Jacklin v. Commissioner, 79 T.C. 340, 351-352

(1982); Heller v. Commissioner, T.C. Memo. 1994-423 ("As long as

the definitional requirements of section 71(b)(1) are met, the

parties' allocation of amounts are generally respected.     Section

71(c)(2) represents one exception to this rule.") (fn. ref.

omitted; emphasis added).
                                - 9 -

     Finally, petitioners assert that it would be "inequitable"

to treat the payments in dispute as child support.      Regrettably

for petitioners, this Court is not a court of equity and does not

possess general equitable powers.       Stovall v. Commissioner, 101

T.C. 140, 149-150 (1993) (citing Commissioner v. McCoy, 484 U.S.

3 (1987)).    Even a District Court, with equitable powers, cannot

disregard statutory terms.   See INS v. Pangilinan, 486 U.S. 875,

883 (1988).   Therefore, petitioners' argument on this score is

unavailing.

     We have considered the remaining arguments of petitioners

and, to the extent we have not addressed them, find them to be

unconvincing.   We hold that petitioners are not entitled to

alimony deductions in the amount of $24,000 claimed on each of

their returns for taxable years 1993, 1994, and 1995.

     To reflect the foregoing and concessions,



                                        An appropriate order

                                granting respondent's motion

                                for partial summary judgment and

                                denying petitioners' cross-motion

                                for partial summary judgment will

                                be issued, and decision will be

                                entered under Rule 155.
