                         T.C. Summary Opinion 2020-22



                        UNITED STATES TAX COURT



                ADAM JORDAN WINSLOW, Petitioner v.
           COMMISSIONER OF INTERNAL REVENUE, Respondent



      Docket No. 8755-18S.                         Filed August 3, 2020.



      Adam Jordan Winslow, pro se.

      Timothy B. Heavner and Chelsey M. Pearson, for respondent.



                              SUMMARY OPINION


      COLVIN, Judge: This case was heard pursuant to the provisions of section

74631 of the Internal Revenue Code in effect when the petition was filed.


      1
      Petitioner resided in North Carolina when he filed his petition. Unless
otherwise indicated, section references are to the Internal Revenue Code (Code) in
                                                                      (continued...)
                                         -2-

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.

Respondent determined that petitioner had a $5,853 deficiency in petitioner’s

Federal income tax for 2015. This determination is based on respondent’s

disallowance of petitioner’s $24,000 alimony deduction. After respondent’s

concession,2 the only issue for decision is whether petitioner may deduct as

alimony $24,000 paid to his former spouse.3 We hold that petitioner may deduct

alimony of $17,820 for 2015.

                                    Background

A.    Petitioner’s Marriage and Divorce

      Petitioner and his former spouse were married on June 11, 2009. They had

one child during their marriage. They separated on November 4, 2014, and

petitioner’s former spouse moved with their child to Florida from their home in


      1
        (...continued)
effect for all relevant times. Rule references are to the Tax Court Rules of Practice
and Procedure. Monetary amounts are rounded to the nearest dollar.
      2
       Respondent concedes that petitioner is not liable for the accuracy-related
penalty under sec. 6662.
      3
       Under the Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, sec. 11051,
131 Stat. at 2089-2090, alimony paid is no longer deductible if paid pursuant to a
divorce instrument executed after December 31, 2018. That statutory change does
not apply to the tax year before the Court.
                                        -3-

Maryland. Petitioner served on active duty in the United States Marine Corps at

all times relevant to this case.

B.    2015 Payments

      Petitioner paid his former spouse $2,000 per month throughout 2015.

Petitioner selected that amount on the basis of the requirement that marines

provide support for separated family members in the amounts mandated by the

Financial Support of Family Members policy (family support policy). Marine

Corps Order (MCO) P5800.16A, Marine Corps Manual for Legal Administration

(Aug. 31, 1999) (Marine Corps Manual). As a result of his duties, petitioner was

very familiar with the Marine Corps Manual family support policy.

      The Marine Corps Manual family support policy provides in pertinent part:

      15000. SCOPE * * * This chapter is punitive in nature, and
      violations of this order are punishable under the UCMJ [Uniform
      Code of Military Justice], and may subject violator to adverse
      administrative action. * * *

      15001. POLICY

            1. * * * Marines shall comply fully with the provisions of
      separation agreements and court orders addressing the support of
      family members. Absent such agreements or court orders, and
      conditioned upon a complaint of nonsupport to a commanding officer,
      the support standards set forth in this chapter shall be enforced. * * *
                                        -4-

             2. Preferably, the amount of support provided to family
      members should be established by a written agreement between the
      parties, or be adjudicated in the civilian courts. * * *

      15002. PUNITIVE PROVISIONS

      1. Marines will not violate any of the following:

                  a. The financial dependent support provisions of a
            court order.

                  b. The financial support provisions of a written
            agreement addressing the issue of dependent
            support. * * *

                   c. If neither a court order nor a written agreement
            exists, the interim financial Support standards of
            paragraph 15004, and orders issued thereunder by a
            commanding officer.

      2. This paragraph is punitive in nature. Marines who fail to comply
      with this paragraph are subject to punishment under the UCMJ, as
      well as to adverse administrative action.

Paragraph 15004 in chapter 15 of the Marine Corps Manual provides a formula for

determining the amount of financial support a marine should pay to his or her

separated spouse. Paragraph 15004 states that if two family members (i.e., a

spouse and a child) are entitled to receive support from a marine, the marine must

pay the greater of: (1) two-thirds of the marine’s basic housing allowance per

month or (2) $572 per month. If the marine is supporting only one family

member, he or she must pay the greater of: (1) one-half of the housing allowance
                                             -5-

or (2) $350 per month. Petitioner’s basic housing allowance during 2015 was

$2,970 per month. Two-thirds of that amount is $1,980. Thus, under the policy,

petitioner was required to pay $1,980 per month. For simplicity, petitioner

rounded that amount up and paid his former spouse $2,000 per month during

2015.

        Emails exchanged between petitioner and his former spouse show that they

both accepted the family support policy as the basis for computing the amount of

petitioner’s support payments. In an email sent to petitioner on December 15,

2014, petitioner’s former spouse stated:

        Per The Financial Support of Family Members Policy please deposit
        $3,671.95 into the joint account today, December 15, 2014.

        Kindly,

        * * * [Petitioner’s former spouse]

That same day petitioner responded:

        I think your calculations are off. The $5,000 I put into the joint
        account that you removed and put in your personal account (that I
        never had access to) covers my obligations through the middle of
        January.

        Kindly,

        * * * [Petitioner]
                                        -6-

      As stated above, petitioner paid his former spouse $2,000 per month, and

they separated on November 4, 2014. The $5,000 amount equals the amount

(rounded) he owed for November ($2,000), December ($2,000), and half of

January ($1,000).

C.    Petitioner’s Divorce

      Petitioner and his former spouse were divorced in 2016. On February 16,

2016, a Judgment for Absolute Divorce was entered in the Circuit Court for

Calvert County, Maryland.

D.    Petitioner’s 2015 Tax Return

      Petitioner timely filed his Form 1040, U.S. Individual Income Tax Return,

for 2015. On that Form petitioner deducted $24,000 for alimony paid.

                                     Discussion

      The issue for decision is how much, if any, petitioner may deduct as

alimony paid to his former spouse during 2015.

A.    Alimony and Separation Instruments

      “[A]limony or separate maintenance payment” is any payment in cash if

(1) the payment is received by a spouse under a divorce or separation instrument,

(2) the divorce or separation instrument does not state the payment is not

includible as gross income under section 71 and is not allowed as a deduction
                                         -7-

under section 215, (3) the spouses are not living in the same household at the time

of the payment, and (4) there is no liability to make the payments 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. Sec. 71(b). Respondent contests only whether the payments were

received by petitioner’s former spouse under a divorce or separation instrument.

      Section 71(b)(2) defines the term “divorce or separation instrument” as:

            (A) a decree of divorce or separate maintenance or a written
      instrument incident to such a decree,

             (B) a written separation agreement, or

            (C) a decree (not described in subparagraph (A)) requiring a
      spouse to make payments for the support or maintenance of the other
      spouse.

B.    Analysis

      Respondent contends that none of the amounts petitioner paid his former

spouse in 2015 qualify as alimony because, according to respondent, petitioner

and his former spouse did not have a written separation agreement. Respondent

also contends that the exchange of emails does not show a meeting of the minds

between petitioner and his former spouse.
                                         -8-

      We disagree. The emails quoted above show petitioner’s and his former

spouse’s intention to accept the Marine Corps Manual family support policy and

constitute a written separation agreement for purposes of section 71(b)(2)(B).

      The phrase “written separation agreement” is not defined in the Code,

applicable regulations, or legislative history. Jacklin v. Commissioner, 79 T.C.

340, 346 (1982); Keegan v. Commissioner, T.C. Memo. 1997-359. Caselaw

establishes that a written separation agreement is a clear, written statement by the

parties stating the terms as agreed by the parties does not need to be approved by a

court. See Jacklin v. Commissioner, 79 T.C. at 350; Bogard v. Commissioner, 59

T.C. 97, 99, 101 (1972).

      A valid written separation agreement exists where one spouse assents in

writing to a letter proposal of support by the other spouse. See, e.g., Azenaro v.

Commissioner, T.C. Memo. 1989-224. A written separation agreement need not

state a specific amount of required support so long as there is an ascertainable

standard with which to calculate support amounts. See Jacklin v. Commissioner,

79 T.C. at 348-351. The emails show that petitioner and his former spouse both

adopted the Marine Corps Manual family support policy as the basis for fixing the

amount of the monthly payments. In her email to petitioner his former spouse

directly refers to the family support policy. Respondent points out that in his
                                         -9-

email petitioner did not refer to the Marine Corps Manual. However, the amounts

stated in his email, when considered in the context of petitioner’s familiarity with

the Marine Corps Manual and its mandatory nature (i.e., “violations of this order

are punishable under the UCMJ, and may subject violators to adverse

administrative action”, MCO 5800.16A, para. 15000), clearly show petitioner’s

intention to comply with the Marine Corps Manual.

      Respondent contends that petitioner’s email does not establish the period

that the $5,000 referred to in his email is meant to cover. We disagree. Under the

Marine Corps Manual petitioner’s payment of $5,000 would cover slightly more

than 2-1/2 months. Two and one-half months after his former spouse moved to

Florida (November 4, 2014) is the middle of January 2015, as petitioner stated in

his email. Petitioner’s reference to $5,000 shows that he applied amounts based

on the family support policy and relied on the Marine Corps Manual to determine

the amount of the payments.

      It is appropriate for us to recognize the importance of the Marine Corps

Manual to petitioner and his former spouse. There is no hint in the record that

before the divorce decree petitioner or his former spouse considered any basis for

determining the amount of support other than the Marine Corps Manual or that

either of them wanted to change the $2,000 monthly amount. The 58 words in
                                       -10-

their emails show the requisite meeting of minds to base petitioner’s payments on

the family support policy mandated by the Marine Corps Manual.

      Respondent points out that petitioner’s former spouse did not file a

complaint with petitioner’s commanding officer and contends that the family

support policy does not apply without such a complaint. We disagree. The text of

the policy shows a clear preference for a marine to agree to support amounts

without requiring intervention by courts or complaints against the marine.

      The record also clearly shows (and respondent does not dispute) that

petitioner’s payments to his former spouse were made as a result of their marital

and familial relationship, see Jacklin v. Commissioner, 79 T.C. at 352, and that

petitioner and his former spouse were separated throughout 2015, see sec.

71(b)(1)(C). The terms of the separation agreement did not preclude the monies

paid from being included as income or require payments to continue if petitioner

died during the separation period. See sec. 71(b)(1)(B), (D).

      On the basis of the foregoing we conclude that petitioner paid alimony

during 2015.

C.    Deduction Amount

      The family support policy requires that, if support payments are made on

behalf of two people (e.g., a spouse and a child), the support payment shall equal
                                       -11-

two-thirds of a marine’s basic housing allowance. Two-thirds of petitioner’s basic

housing allowance was $1,980 per month.

      Under section 71(c), a taxpayer may not deduct payments for child support.

Petitioner paid two-thirds of his basic housing allowance to his former spouse for

her and their child. If petitioner and his former spouse had had no children and

petitioner’s support payments had been based only on his former spouse, he would

have been required to pay one-half of his basic housing allowance. MCO

5800.16A, para. 15004. One-half of petitioner’s basic housing allowance for 2015

was $1,485 per month ($17,820 per year). We find that petitioner paid $1,485 in

alimony each month.

D.    Conclusion

      The emails exchanged between petitioner and his former spouse coupled

with the Marine Corps Manual established a written separation agreement. At trial

petitioner established that the $24,000 he paid during 2015 to his former spouse

was paid because of his marital relationship. The Marine Corps Manual
                                       -12-

designated one-half of his basic housing allowance to be paid to his former

spouse. Therefore, petitioner may deduct $17,820 from his income for 2015.


                                              Decision will be entered under

                                      Rule 155.
