                  T.C. Summary Opinion 2007-98



                      UNITED STATES TAX COURT



                 ROBERT F. DILLON, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 17382-05S.             Filed June 18, 2007.



     Robert F. Dillon, pro se.

     Thomas Yang, for respondent.



     GOLDBERG, 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.   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
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the year in issue, and all Rule references are to the Tax Court

Rules of Practice and Procedure.

     Respondent determined a deficiency in petitioner’s Federal

income tax for the year 2003 in the amount of $2,497.     The sole

issue for decision is whether petitioner is entitled to an

alimony deduction in the amount of $9,000 for the taxable year in

issue.

                             Background

     The stipulation of facts and the attached exhibits are

incorporated herein by reference.    At the time the petition was

filed, petitioner resided in River Forest, Illinois.

     Petitioner and his former spouse, Ann Dillon (Ms. Dillon),

were married on September 4, 1971, in Cook County, Illinois.     Six

children were born of the marriage.     On August 31, 1999, a

Judgment of Dissolution of Marriage (Judgment) was entered in the

Circuit Court of Cook County, Illinois, Domestic Relations

Division (circuit court).    At the time that the Judgment was

entered, two of the six children, A.D. and B.D.1, were minors.

Sole care, custody, and control of the minor children remained

with Ms. Dillon.

     In paragraph D of the Judgment, the circuit court ordered

petitioner to make monthly payments in the amount of $1,500

described as “unallocated support and maintenance.”     Paragraph D


     1
         The Court uses the initials of the minor children.
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also states that the amount of payment will be reviewable upon

the emancipation of A.D., the first of the two minor children to

reach the age of 18.    The Judgment is silent otherwise as to the

parties’ intent that the payment or any part thereof, be

deductible as alimony by petitioner and includable as gross

income to Ms. Dillon.   The Judgment itself is also silent as to

whether petitioner’s obligation to make the monthly payments

would survive petitioner’s death.

     A.D. turned 18 sometime during the year at issue.   The

record is silent as to whether, at that time, the amount of the

monthly payments being paid by petitioner was reviewed by the

circuit court.

     Petitioner has been employed as a school teacher by

Consolidated High School in Orland Park, Illinois, for the past

15 years.   In accordance with the terms of an Order made pursuant

to the Judgment, petitioner’s monthly payments to Ms. Dillon were

deducted from his paychecks.   At trial, the Court received into

evidence three paycheck stubs dated August 31, September 15, and

December 15, 2005.   Each of these stubs shows a wage assignment

deduction of $755.   Petitioner did not have with him at the trial

any of the stubs from the year in issue, however, he claimed that

given the opportunity, he could and would produce the stubs for

2002.   At the close of the trial, the Court ordered that the

record in this case would remain open for 30 days in order for
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petitioner to submit either paycheck stubs or a yearend summary

of payments from 2003.    Within that time period, the Court

received into evidence a yearend statement from petitioner’s

employer showing total deductions from pay for 2003 of $20,742.

                             Discussion

     The Commissioner’s determinations are presumed correct, and

taxpayers generally bear the burden of proving otherwise.      Welch

v. Helvering, 290 U.S. 111, 115 (1933).    Petitioner did not argue

that section 7491 is applicable in this case, nor did he

establish that the burden of proof should shift to respondent.

Moreover, the issue involved in this case, alimony, is a legal

one and will be decided on the record without regard to the

burden of proof.   Petitioner, however, bears the burden of

proving that respondent’s determination in the notice of

deficiency is erroneous.    See Rule 142(a); Welch v. Helvering,

supra at 115.

     An individual may deduct from his or her gross income the

payments he or she made during a taxable year for alimony or

separate maintenance.    Sec. 215(a).

     Section 71(b)(1) defines “alimony or separate maintenance

payment” as any payment in cash if:

          (A) such payment is received by (or on behalf of)
     a spouse under a divorce or separation instrument,
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          (B) 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,

          (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 test under section 71(b)(1) is conjunctive; a payment is

deductible as alimony only if all four requirements of section

71(b)(1) are present.   See Jaffe v. Commissioner, T.C. Memo.

1999-196.   Moreover, section 71(c) provides, in pertinent part,

for no deduction of any payment which is payable “for the support

of children of the payor spouse.”

     In this case, the monthly payments prescribed under the

Judgment fail to comport with section 71.   First, there is no

provision in the Judgment, in accordance with section

71(b)(1)(B), indicating whether the parties intended either the

whole or part of the “unallocated support and maintenance

payments” to be included in income by Ms. Dillon and deducted by

petitioner.   Second, there is no provision in the Judgment

imparting liability to petitioner to make payment for any period

after Ms. Dillon’s death in accordance with section 71(b)(1)(D).
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Finally, because the monthly payment prescribed in the Judgment

is for “unallocated maintenance and support” we cannot determine

what portion of the payment is intended for alimony and what

portion is intended for child support.   We assume that because

the amount is made reviewable upon the occasions when each of the

minor children turns 18 that some, if not all, of the payment is

intended as child support.   In the latter case, if all of the

payment was intended as child support, then petitioner would not

be entitled to any deduction pursuant to section 71(c).

     In this case, petitioner did not change, nor did the circuit

court revisit, the amount of the monthly payment when A.D.

reached the age of 18 in 2002.    Petitioner, rather, decided that

instead of reducing the amount of the payment, or petitioning the

court to reduce the amount of the payment, that he would “allow

his ex-wife to keep the extra $9,000 and pay the taxes on it,”

thus allowing him to accordingly deduct $9,000 from his gross

income in that year.   Petitioner’s decision and reasoning for his

action, however, do not comport with the requirements of section

71(b)(1), as this “payment” so designated by petitioner is not

pursuant to a divorce decree or instrument as required by section

71(b)(1)(A).

     Accordingly, and based on the foregoing facts and

discussion, we hold that petitioner is not entitled to an alimony

deduction under section 71 for taxable year 2002.
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             Decision will be entered

        for respondent.
