                  T.C. Summary Opinion 2001-70



                     UNITED STATES TAX COURT



                 CHESTER W. BONAR, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 5240-00S.                       Filed May 15, 2001.


     Chester W. Bonar, pro se.

     Kathleen K. Raup, for respondent.



     DEAN, 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.    Unless otherwise

indicated, subsequent section references are to the Internal

Revenue Code in effect for the years in issue.    The decision to

be entered is not reviewable by any other court, and this opinion

should not be cited as authority.
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     Respondent determined deficiencies in petitioner’s Federal

income taxes of $2,352 for each of the 1995 and 1996 taxable

years.   The issue for decision is whether payments made by

petitioner to his ex-wife in 1995 and 1996 are deductible as

alimony under section 215(a).

                            Background

     The stipulation of facts and the accompanying exhibits are

incorporated herein by reference.   Petitioner resided in

Philadelphia, Pennsylvania, at the time his petition was filed

with the Court.

     Petitioner was legally divorced from his ex-wife in 1993.

Petitioner and his ex-wife entered into a Stipulation and

Agreement (Agreement) dated June 25, 1993, providing for support

for petitioner’s ex-wife and children.   With respect to child

support, the Agreement provides in pertinent part:

          Husband shall pay to Wife as and for child support
     the amount of TWO HUNDRED SIXTY ($260) Dollars per
     week, payable on a weekly basis, subject to termination
     upon the death of the payor or infant children; upon
     each of the infant children attaining the age of
     eighteen (18), graduation from high school, marriage or
     other emancipation, whichever of said terminating
     contingencies shall first occur. If the child is a
     full time high school student, is not self-supporting
     and is living in the home of the parent receiving child
     support, the Husband shall continue to pay said child
     support until the child reaches the age of nineteen
     (19) or graduates from high school, whichever first
     occurs.

     A separate provision addressing spousal support provides:
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          SPOUSAL SUPPORT/RETIREMENT: Husband shall pay to
     Wife as and for spousal support, alimony and
     maintenance, the periodic sum of SEVEN HUNDRED ($700)
     dollars per month, payable in one installment of
     $700.00 on the 20th day of each month, beginning July
     20, 1993, subject to automatic termination upon (a) the
     Wife’s re-marriage, or (b) the death of Wife or
     Husband, or (c) the youngest child reaching age
     eighteen (18), whichever of said terminating
     contingencies shall first occur.

Pursuant to the provision providing for spousal support,

petitioner made payments to his former wife totaling $8,400 in

1995 and $8,400 in 1996.   Petitioner treated the payments as

alimony within the meaning of section 215(a) and deducted them

from his gross income in 1995 and 1996 on his Forms 1040, U.S.

Individual Income Tax Returns.    Respondent determined that the

payments were not deductible as alimony and issued petitioner a

notice of deficiency.

                            Discussion

     Pursuant to sections 71(a) and 215(a), alimony is taxable to

the recipient and is deductible by the payer.    Child support

payments, on the other hand, are neither includable in income

under section 71 nor deductible under section 215.    See sec.

71(c).   Alimony is 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 this section and not
     allowable as a deduction under section 215,
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          (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. [Sec. 71(b)(1).]

     Child support is that part of a payment which the divorce or

separation instrument fixes as payable for the support of the

children of the payor spouse.    See sec. 71(c)(1).   An amount is

treated as fixed under section 71(c)(1) and thus treated as child

support if it will be reduced "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)”.   Sec. 71(c)(2)(A).

     Respondent maintains that petitioner’s payments to his

former spouse are not alimony within the meaning of section 71(b)

and thus are not deductible.    Petitioner, on the other hand,

maintains that the payments were made in accordance with the

provision in the Agreement calling for “spousal support, alimony

and maintenance” and that the Agreement had a separate provision

providing for child support.    Petitioner also points out that his

“alimony” payments to his former spouse were not reduced, as were

the payments required under the Agreement for child support, in
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1998 when his daughter Jacqueline Joan Bonar began living with

him.

       Regardless of the Agreement’s characterization of

petitioner’s payments as alimony, the payments must meet the

specific requirements of the Internal Revenue Code in order to be

deductible from petitioner’s gross income for Federal income tax

purposes.    See INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84

(1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440

(1934).    Section 71(c) specifically provides that a payment will

be “treated as an amount fixed as payable for the support of

children of the payor spouse” if the payments are reduced “on the

happening of a contingency * * * relating to a child”.     Temporary

regulations promulgated under section 71 make clear that payments

may be treated as child support “even if other separate payments

specifically are designated as payable for the support of a child

of the payor spouse.”    Sec. 1.71-1T(c), Q&A-16, Temporary Income

Tax Regs., 49 Fed. Reg. 34451, 34456 (Aug. 31, 1984).

       Under the terms of the Agreement, the payments at issue are

subject to automatic termination upon “the youngest child

reaching age eighteen”.    This contingency renders petitioner’s

payments ineligible for treatment as alimony.    See Hammond v.

Commissioner, T.C. Memo. 1998-53; Fosberg v. Commissioner, T.C.

Memo. 1992-713.    We therefore hold that petitioner’s payments are

not deductible from his gross income in 1995 and 1996.
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    Reviewed and adopted as the report of the Small Tax Case

Division.

                                       Decision will be entered

                                  for respondent.
