                          T.C. Memo. 1999-53



                        UNITED STATES TAX COURT


                   CURTIS L. ANDERSON, Petitioner v.
             COMMISSIONER OF INTERNAL REVENUE, Respondent


        Docket No. 10632-97.                Filed February 26, 1999.


        Thomas E. Towe, for petitioner.

        Joan S. Dennett, for respondent.


                          MEMORANDUM OPINION

        POWELL, Special Trial Judge:   This case was heard pursuant

to the provisions of section 7443A(b)(3) and Rules 180, 181, and

182.1

        Respondent determined deficiencies in petitioner's 1994 and

1995 Federal income taxes in the respective amounts of $3,045 and

$3,542.     Respondent also determined accuracy-related penalties

under section 6662(a) for negligence in the respective amounts of


1
    Section references are to the Internal Revenue Code in effect
for the years in issue, and Rule references are to the Tax Court
Rules of Practice and Procedure.
                                - 2 -

$609 and $708 for each year.   Petitioner resided in Billings,

Montana, at the time the petition was filed.

     The sole issue is whether amounts petitioner paid to or on

behalf of his ex-wife in 1994 and 1995 are deductible as alimony

under section 215.2

     The facts may be summarized as follows.   Petitioner was

married to Mieko Anderson (Ms. Anderson) from April 1967 until

June 1990.   In 1970, Ms. Anderson began to suffer from mental

illness, and she became unpredictable and at times violent and

destructive.   Over time Ms. Anderson's condition grew steadily

worse.   She was diagnosed as schizophrenic.   Petitioner filed for

divorce on June 13, 1990.

     Ms. Anderson refused to participate in the divorce

proceedings, and the court appointed a conservator for her.

Although Ms. Anderson appeared to understand the nature of the

proceedings, she refused to comply with any of the court's

requests or attend any of the hearings.   Ms. Anderson's

unwillingness to participate in the process prevented the court

from ascertaining her needs in terms of support.   In addition,

Ms. Anderson's future was uncertain, i.e., whether or not she

would be institutionalized.    Petitioner requested that the issue

of spousal support be reserved until the amount of support could

be determined.   The Judgment Of Dissolution Of Marriage provided




2
    Respondent has conceded the accuracy-related penalties under
sec. 6662(a).
                                 - 3 -

that:     "The issue of spousal support is reserved for both

parties."     The divorce became final on December 16, 1990.

     From 1991 to 1995 petitioner paid all of Ms. Anderson's

living expenses and kept her in the same financial status as she

had been accustomed to prior to the divorce.     In 1995, Ms.

Anderson's condition worsened.     She was institutionalized and

eventually returned to Japan.

     Petitioner paid $20,337.21 and $12,635.04 respectively for

Ms. Anderson's support during 1994 and 1995.     Petitioner deducted

these amounts as alimony on his Federal income tax returns for

those years.     Respondent disallowed the deductions.

                            Discussion

        Section 215(a) allows a deduction for amounts paid for

"alimony or separate maintenance payments".     An alimony or

separate maintenance payment is defined by section 71(b).        Sec.

215(b).     Relevant here, section 71(b)(1)(A) defines alimony or

separate maintenance payments as payments "received by (or on

behalf of) a spouse under a divorce or separation instrument".

Section 71(b)(2) defines a 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 * * * requiring a spouse to make payments
        for the support or maintenance of the other spouse.


A written decree or agreement obligating the taxpayer to pay

alimony is needed to sustain a deduction under section 215.

Prince v. Commissioner, 66 T.C. 1058, 1066-1067 (1976).
                               - 4 -

     Petitioner contends that because the issue of spousal

support was not waived by either party, petitioner was in fact

obligated to pay for Ms. Anderson's expenses.    Petitioner asserts

that while circumstances prevented the divorce court from

ascertaining a set amount for Ms. Anderson's support, petitioner

was expected and required to provide for her financially.

     We are concerned here with the provisions of section

71(b)(2).   Clearly the decree does not contain any requirement

that petitioner make alimony or separate maintenance payments.

The reservation of the spousal support by the divorce decree is

not enough by itself to create a legally enforceable obligation.

Brooks v. Commissioner, T.C. Memo. 1983-304.    Thus, neither

section 71(b)(2)(A) nor (C) applies.   Moreover, there is no

separation agreement setting forth support payments.    Indeed, it

is clear that there was no agreement, whether written or not.

Section 71(b)(2)(B) does not apply.

     Petitioner contends that under Jacklin v. Commissioner, 79

T.C. 340 (1982), and Friedland v. Commissioner, T.C. Memo. 1982-

549, the divorce decree need not provide a set amount of payment

to create a support obligation.   We agree.3   In each of those

cases, however, a written instrument did exist that created a

legally enforceable obligation upon the husband to either make

certain payments or maintain a certain standard of living for the


3
    These cases interpret a former version of sec. 71. The
statute, as amended, still requires a decree or a written
instrument and requires that the payments be made under such
decree or written instrument.
                                - 5 -

spouse.   While the instrument does not have to be part of the

divorce decree itself, some written agreement must exist that

creates a legally enforceable right to the support payments.

Prince v. Commissioner, supra at 1067.

     We recognize that the payments by petitioner were no less in

the nature of support than amounts paid under a divorce decree or

written separation agreement.    Congress, however, has imposed

safeguards and restrictions statutorily limiting a deduction to

enumerated situations.   The payments made here fall outside those

limits, and we cannot rewrite the applicable statutes.      See

Brooks v. Commissioner, supra.

                                        Decision will be entered

                                for respondent as to the

                                deficiencies and for petitioner

                                as to the penalties under section

                                6662(a).
