                    T.C. Summary Opinion 2008-102



                       UNITED STATES TAX COURT



        MARK A. CROMPTON AND DIANE J. CROMPTON, Petitioners v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 1838-07S.                Filed August 13, 2008.



     Mark A. Crompton and Diane J. Crompton, pro sese.

     Monica J. Miller, and Kevin Parrington, for respondent.



     DEAN, 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.    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.    Unless otherwise indicated, subsequent section references

are to the Internal Revenue Code in effect for the year in issue,
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and all Rule references are to the Tax Court Rules of Practice

and Procedure.

     Respondent determined a $1,500 deficiency in petitioners’

2004 Federal income tax.   The issue for decision is whether

petitioners are entitled to claim a $6,000 deduction for alimony

paid to Nancy Wood (former wife).

                              Background

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

The stipulation of facts and the exhibits received into evidence

are incorporated herein by reference.      When petitioners filed

their petition, they resided in Georgia.

     On November 7, 1996, Mark A. Crompton (Mr. Crompton) was

divorced from former wife by a final decree of the Family Court

of Delaware (family court).    A “Stipulation and Order Resolving

Ancillary Matters Pursuant to a Decree of Divorce” (the order)

was entered on January 13, 1997.    The order directed Mr. Crompton

to pay alimony of $500 per month for a 10-year period beginning

November 15, 1996.   The order does not contain a provision

regarding the effect of remarriage on Mr. Crompton’s obligation

to pay alimony.

     In 2003 former wife remarried.     Former wife did not inform

Mr. Crompton of her subsequent marriage, and he was otherwise not

informed that she had remarried.    During 2004 Mr. Crompton

continued to make monthly payments of $500 to former wife.
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Former wife did not include the payments in gross income on her

joint return for 2004.       Petitioners filed a joint return for 2004

and claimed a $6,000 deduction for alimony paid.

                                Discussion

I.    Burden of Proof

       The Commissioner’s determinations in a notice of deficiency

are presumed correct, and the taxpayer has the burden to prove

that the determinations are in error.        Rule 142(a); Welch v.

Helvering, 290 U.S. 111, 115 (1933).         But the burden of proof on

factual issues that affect a taxpayer’s tax liability may be

shifted to the Commissioner if he introduces credible evidence

with respect to the issue.       See sec. 7491(a)(1).   There is no

dispute as to any factual issue.       Accordingly, this case is

decided by the application of law to the undisputed facts, and

section 7491(a) is inapplicable.

II.    Alimony Deduction

       Section 215(a) allows a deduction for alimony paid during

the taxable year.       Section 215(b) provides that the term

“alimony” means any alimony (as defined in section 71(b)) that is

includable in the recipient’s gross income under section 71.

Section 71(b)(1) defines alimony as any cash payment meeting the

four criteria provided in subparagraphs (A) through (D).        The

first criterion is that the payment must be made “under a”

divorce or separation instrument.       Sec. 71(b)(1)(A).   The phrase
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“divorce or separation instrument” includes a written instrument

incident to a divorce decree.    Sec. 71(b)(2)(A).

     The parties dispute the characterization of the $500 monthly

payments.   Respondent, citing Del. Code Ann. tit. 13, sec.

1519(b) (1999 & Supp. 2008),1 contends that the payments are not

alimony:

     [B]ecause under Delaware state law, unless the divorce
     decree expressly states that the payments have to
     continue after remarriage, the obligation to make the
     payments ceases upon the remarriage of the recipient
     spouse. Because of that, under the Internal Revenue
     Code, these payments were no longer required under a
     divorce or separation instrument, which is necessary to
     be qualified as alimony.

     Mr. Crompton contends that because he did not know that

former wife had remarried, “I continued to meet what I felt was

my obligation for alimony, paying on a monthly basis * * * The

divorce decree clearly stated that I needed to pay alimony for 10

years.”    He also contends that former wife’s cohabitation,

remarriage, or death is merely a “statutory [factor] for

termination”.    Thus, petitioners are entitled to a deduction for

alimony paid.



     1
      Del. Code Ann. tit. 13, sec. 1519(b) (1999 & Supp. 2008)
provides that the obligation to pay future alimony is terminated
on the recipient’s remarriage unless otherwise agreed by the
parties in writing and expressly provided in the decree. See
also Caldwell v. Caldwell, 458 A.2d 709, 711 (Del. Fam. Ct. 1983)
(“Remarriage by a once-dependent former spouse operates as an
absolute bar to alimony, regardless of any continuing need for
support”).
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     Congress, in amending section 71, has determined that “a

uniform Federal standard should be set forth to determine what

constitutes alimony for Federal tax purposes.”       H. Rept. 432,

98th Cong., 2d Sess. 1495 (1984).        This definition is predicated

on an objective standard, and courts generally should not make

subjective inquiries under the varying laws of the States.

Hoover v. Commissioner, 102 F.3d 842, 845-846 (6th Cir. 1996),

affg. T.C. Memo. 1995-183.   It is Congress’s intent that courts,

in determining whether payments constitute alimony under section

71, will look to State law only to determine whether the

requirement of section 71(b)(1)(D) is satisfied; i.e., whether

State law provides that the payments terminate upon the payee’s

death.   Id. (citing H. Rept. 432, supra at 1496).

     If the Court were to accept respondent’s argument, it would

have to look first to Delaware law in order to determine whether

the order was enforceable and thereby such payments were received

“under a” divorce or separation instrument pursuant to State law.

Such an inquiry impermissibly injects State law into section

71(b)(1)(A) through the back door.       This the Court cannot do--it

will follow Congress’s intent.    Under the order, Mr. Crompton was

required to pay $500 per month for a 10-year period.       The

payments were received by former wife under a divorce or

separation instrument consonant with section 71(b)(1)(A).

Accordingly, respondent’s determination is not sustained.
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To reflect the foregoing,

                                    Decision will be entered for

                            petitioners.
