                  T.C. Memo. 2001-184



                UNITED STATES TAX COURT



           KATHERINE A. WEIR, Petitioner v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 11550-99.                      Filed July 23, 2001.



     P omitted from gross income certain payments,
characterized by R as “Pension Income”. P argues that
those payments were received from ex-husband in lieu of
her right to payments under his military pension.
     1. Held: Incident to P’s divorce from her
ex-husband, P received as her separate property an
interest in ex-husband’s military pension, and payments
by ex-husband to her pursuant to agreement were gross
income to her pursuant to sec. 61(a)(11), I.R.C.
     2. Held, further, P is liable for an addition to
tax under sec. 6651(a), I.R.C., and a penalty under
sec. 6662(a), I.R.C.



Bruce A. Meyers, for petitioner.

David A. Conrad, for respondent.
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                           MEMORANDUM OPINION


       HALPERN, Judge:   By notice of deficiency dated January 22,

1999 (the notice), respondent determined deficiencies in,

additions to, and penalties with respect to, petitioner’s 1994

and 1995 Federal income taxes as follows:

                               Additions to Tax/Penalty Under
Year     Deficiency      Sec. 6651(a)     Sec. 6654    Sec. 6662(a)
1994       $4,662            $431            $31           $932
1995        4,788           2,765            468            --

Respondent has since conceded the section 6651(a) addition to tax

for 1995.    We accept that concession.    Besides the remaining

additions to tax and penalty, the issue for decision is whether

there are deficiencies in tax on account of petitioner’s omission

from income of certain payments, characterized by respondent as

“Pension Income”.     This case has been submitted for decision

without trial, pursuant to Rule 122.      Facts stipulated by the

parties are so found.     The stipulation of facts filed by the

parties, with attached exhibits, is included herein by this

reference.

       Unless otherwise indicated, all section references are to

the Internal Revenue Code in effect for the years in issue, and

all Rule references are to the Tax Court Rules of Practice and

Procedure.
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                             Background

     Petitioner resided in Germany at the time the petition was

filed.

     On December 15, 1956, petitioner married Robert E. Mooney

(ex-husband) in Dale City, California.    Subsequent to their

marriage, ex-husband served in the U.S. Armed Forces.    On

February 26, 1979, petitioner and ex-husband entered into an

agreement styled “Separation Agreement” (the agreement), which

agreement was occasioned by their separation and desire to live

apart.   Among other things, the agreement states that the parties

thereto desire to determine property and other rights growing out

of their marriage.    In pertinent part, the agreement provides:

     15. MILITARY RETIREMENT PENSION: The Husband agrees
     to pay to the Wife her community property interest in
     his military retirement pension upon receipt thereof.
     The Wife’s interest shall be determined by taking one-
     half (½) of a fraction of the military retirement
     pension, which fraction shall have as its numerator the
     number of years that the Husband and Wife were married
     during the Husband’s service on active duty and as its
     denominator the total number of years of active duty
     upon which the Husband’s retirement benefits are based;
     * * *

     On August 24, 1979, petitioner and ex-husband entered into

an agreement styled    “Addendum to Separation Agreement” (the

addendum), which, in pertinent part, states the following:

     6. The Petitioner Wife hereby waives any claim to
     spousal support from the Respondent Husband having been
     advised that by such a waiver, spousal support is
     forever resolved and she may not later request the
     Court for any allowance of spousal support from the
     Respondent Husband. This waiver in no way waives the
                               - 4 -

     Petitioner Wife’s rights regarding the military
     retirement pension in which she has a vested community
     interest and which said pension rights are set forth in
     the Separation Agreement herein.

     On September 26, 1979, an interlocutory judgment of

dissolution of marriage (the interlocutory judgment) was entered

in the Superior Court of California, County of Napa (Superior

Court).   Among other things, the interlocutory judgment

incorporated both the agreement and the addendum.

     On January 3, 1980, a final judgment of dissolution of

marriage (the final judgment) was entered in the Superior Court,

which, among other things, incorporated and made binding all of

the provisions of the interlocutory judgment, and restored

petitioner and ex-husband to the status of single persons.

     By personal check, ex-husband paid petitioner $16,641 and

$17,098 in 1994 and 1995, respectively (without distinction, the

payments).   Petitioner did not report the $16,641 payment on her

1994 Federal income tax return, nor did she report the $17,098

payment on her 1995 Federal income tax return.

     Petitioner filed her 1994 Federal income tax return (the

1994 return) no earlier than May 20, 1996.   The 1994 return shows

a total tax due of $6,798.97 and total payments of $9,871.12.

     The notice contains a statement of income tax changes

showing increases of $16,641 and $17,098, for 1994 and 1995,

respectively, with the explanation “Pension Income”.   The notice

further explains that petitioner received those sums from
                                - 5 -

ex-husband, which sums constitute gross income that petitioner

did not report on her income tax returns.    The notice states that

the total tax shown on petitioner’s 1995 Federal income tax

return (the 1995 return) is $13,431 and that petitioner made

total payments of $7,161.

      By the petition, petitioner assigns error to respondent’s

determination of deficiencies, additions to tax, and a penalty.

Among the averments made by petitioner is that the payments were

transfers of property incident to divorce pursuant to section

1041.

                              Discussion

I.   Deficiencies in Tax

      A.   Introduction

      Petitioner was divorced from ex-husband on January 3, 1980.

Incorporated into the final judgment was the agreement by which

ex-husband agreed to pay to petitioner “her community property

interest in his military retirement pension upon receipt

thereof”.    The payments were made pursuant to the agreement.   We

must determine whether the payments constitute items of gross

income to petitioner.

      B.   Pension Payments

      In pertinent part, section 61(a) provides:   “gross income

means all income from whatever source derived, including (but not

limited to) the following items:    * * * (11) Pensions”.
                                  - 6 -

Petitioner does not argue, nor would we agree, that military

retirement pay is not a pension within the meaning of section

61(a)(11).   See, e.g., Eatinger v. Commissioner, T.C. Memo. 1990-

310 (stating, without discussion:     “A military retirement

pension, like other pensions, is simply a right to receive a

future income stream from the retiree’s employer.”); sec. 1.61-

11, Income Tax Regs. (“Pensions and retirement allowances paid

either by the Government or by private persons constitute gross

income unless excluded by law.”).     Nor does petitioner argue, nor

would we agree, that pension payments are not gross income to a

divorced spouse who, upon the division of the property of the

marital community attendant to the divorce, received the right to

those payments as her separate property.     See, e.g., Eatinger v.

Commissioner, supra; Lowe v. Commissioner, T.C. Memo. 1981-350.

     C.   Petitioner’s Argument

     Petitioner relies on the following points:

          At the time of the divorce, the Court ordered that
     Petitioner’s ex-husband, Robert Mooney, make settlement
     payments to her in lieu of her community property
     interest in the military retirement benefits. Weir
     received cash settlement payments while her ex-husband,
     Robert Mooney, received the military retirement
     benefits as his separate property. At the time of the
     divorce, the equal division of the community was
     considered a nontaxable partition of the property.
     Whereas, this equal division of the community is
     considered a nontaxable partition of the property.

     Petitioner’s divorce became final on January 3, 1980.

Petitioner’s view of the facts is that, on that date, an
                                  - 7 -

approximately equal division of the community was made, with

petitioner giving up her interest in ex-husband’s military

retirement pension (the pension) and receiving in lieu thereof

“cash settlement payments” (the settlement payments).        Relying on

Balding v. Commissioner, 98 T.C. 368 (1992), discussed infra,

petitioner argues that such exchange was nontaxable.        Without

further discussion, petitioner concludes that the payments were

not items of gross income.

     D.   Discussion

             1.   The Agreement

     In pertinent part, the agreement provides:        “The Husband

agrees to pay to the Wife her community property interest in his

military retirement pension upon receipt thereof.”        (Emphasis

added.)   In pertinent part, the addendum provides:       “This waiver

in no way waives the Petitioner Wife’s rights regarding the

military retirement pension in which she has a vested community

interest”.    (Emphasis added.)   We have no doubt that, at the time

petitioner and ex-husband executed the agreement and addendum,

they assumed the pension to be community property.        We also have

no doubt that petitioner understood that the pension was not an

asset that could be liquidated, so that she would immediately

receive a portion of the proceeds.        While it is true that the

agreement contemplates that ex-husband would collect the pension

payments, petitioner has failed to convince us that she and
                                 - 8 -

ex-husband intended by that arrangement anything other than that

he would act as a collection agent on her behalf.    We do not read

the agreement as allocating the pension in full to the ex-husband

and, on account thereof, other community property of an equal

value to petitioner.    Petitioner has cited no case interpreting

language similar to that in the agreement in the manner advocated

by petitioner.    We find that, pursuant to the agreement and

incident to the divorce, petitioner received an interest in the

pension as her separate property.

          2.     Tax Consequences to Petitioner on Receipt of Her
                 Separate Property Interest in the Pension

     Section 1041 deals with transfers of property between

spouses or incident to divorce.    In general, it provides that

(1) no gain or loss shall be recognized to the transferor on such

a transfer and (2) the transferee succeeds to the transferor’s

basis.   It is arguable that section 1041 has no application to an

equal-in-value division of the property of a marital community,

since there is no transfer of property but only a partition of

the community.    See Commissioner v. Mills, 183 F.2d 32, 34

(9th Cir. 1950), affg. 12 T.C. 468 (1949); Walz v. Commissioner,

32 B.T.A. 718, 720 (1935).

     In any event, section 1041 is inapplicable to any transfer

in 1980 incident to either the agreement or the final judgment,

since any such transfer would be pursuant to an instrument that

predates the effective date of section 1041.    See sec. 421(d) of
                                  - 9 -

the Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 793

(adding section 1041, generally effective for transfers after

July 18, 1984, but, in some cases, effective for transfers after

December 31, 1983).

     Law predating section 1041 establishes that, in the case of

an approximately equal division of community property on divorce,

no gain is recognized on the theory that no sale or exchange has

occurred but only a nontaxable partition, and the basis of the

property set aside for each spouse is its basis to the community

prior to the divorce.      See, e.g., Carrieres v. Commissioner, 64

T.C. 959, 964 (1975), affd. per curiam 552 F.2d 1350 (9th Cir.

1977).

     Since we assume that there was here an approximately equal

division of the community property, petitioner recognized no gain

(or loss) on receipt of her separate property pension rights.      We

assume that the community’s, and her, basis in those rights was

zero.

            3.    Receipt of Payments

     Petitioner had no basis in her separate property pension

rights.   Petitioner was taxable in full on receipt of the

payments.    See sec. 61(a)(1); Eatinger v. Commissioner, supra.

It is of no moment that the payments were collected by the

ex-husband.      See Mess v. Commissioner, T.C. Memo. 2000-37;

Eatinger v. Commissioner, T.C. Memo. 1990-310.
                                - 10 -

II.   Additions to Tax and Penalty

      A.   Introduction

       Section 6651(a) provides that an addition to the tax shall

be imposed in the case of failure to file a return, “unless it is

shown that such failure is due to reasonable cause and not due to

willful neglect”.    Section 6654(a) provides that an addition to

tax shall be imposed in the case of any underpayment of estimated

tax by an individual.     Section 6662(a) provides for a penalty

equal to 20 percent of the underpayment in tax attributable to,

among other things, negligence or disregard of rules or

regulations (without distinction, negligence).     See sec.

6662(b)(1).    The penalty for negligence will not apply to an

underpayment in tax to the extent that the taxpayer can show both

reasonable cause and the taxpayer acted in good faith.     See sec.

6664(c)(1).    Negligence has been defined as the failure to

exercise the due care of a reasonable and ordinarily prudent

person under like circumstances.     See Neely v. Commissioner,

85 T.C. 934, 947 (1985).

      B.   Petitioner’s Position

      In the petition, petitioner assigns error to respondent’s

determination of additions to tax and penalty, but she sets forth

no facts in support of that assignment of error.     On brief,

petitioner argues:

           The Commissioner has assessed a [sic] penalties
      against Weir under sections 6651(a)(1), 6654, and
                              - 11 -

     6662(a) of the Code. Weir should not be liable for
     these penalties, since she had reasonable cause for
     relying on the language of the Separation Agreement
     showing that her ex-husband was awarded all interest in
     the military retirement benefits and she merely
     received settlement payments from him and that it was
     not due to willful neglect.

     C.   Burden of Proof

     There is some question here as to who bears the burden of

proof with respect to the additions to tax and penalty.   Section

7491(c) provides:   “Notwithstanding any other provision of this

title, the Secretary shall have the burden of production in any

court proceeding with respect to the liability of any individual

for any penalty, addition to tax, or additional amount imposed by

this title.”   The burden imposed by section 7491(c) is only to

come forward with evidence regarding the appropriateness of

applying a particular addition to tax or penalty to the taxpayer.

Respondent need not negate all defenses to the additions or

penalties.   See Higbee v. Commissioner, 116 T.C.    ,       (2001).

Section 7491 is effective for court proceedings arising in

connection with examinations commencing after July 22, 1998.     See

Internal Revenue Service Restructuring and Reform Act of 1998,

Pub. L. 105-206, sec. 3001, 112 Stat. 726.   The notice is dated

January 22, 1999.   The parties have not informed us whether the

examination commenced on or before July 22, 1998.   Respondent

assumes that petitioner bears the burden of proof, and petitioner

does not address the issue.   Whether section 7491(c) applies or
                              - 12 -

not, we think that, except as noted with respect to the addition

to tax under section 6654, the evidence is sufficient to sustain

the remaining additions to tax and the penalty.

     Petitioner’s 1994 Federal income tax return was filed no

earlier than May 20, 1996.   She received an automatic extension

to file and pay until June 15, 1995.   See sec. 1.6081-5, Income

Tax Regs.   Subsequently, she was granted an additional 2-month

extension to file, so that her return was due by August 15, 1995.

Petitioner, therefore, failed to file her return by the date

prescribed in section 6651(a)(1).   Further, on the face of the

1994 return, there is a substantial underpayment.   Thus, even if

respondent bears the burden of production because of section

7491(c), he has sustained that burden with respect to the

addition to tax and penalty determined under sections 6651(a) and

6662(a), respectively.

     D.   Petitioner’s Defenses

     Petitioner has no defense to the additions to tax under

section 6651(a) for failure to file.   Petitioner’s defense to the

penalty under section 6662(a) for negligence is that she had

reasonable cause for “relying on the language of the Separation

Agreement”.   We take that claim to be that there was reasonable

cause for the underpayment because petitioner had reasonable

cause for relying on the agreement.
                               - 13 -

     Petitioner has failed to demonstrate that reasonable cause.

None of the stipulated facts directly addresses what caused

petitioner to come to any conclusion about the agreement, nor can

we infer from those facts what it was that caused her to come to

any conclusion.   All we have in evidence is the agreement,

itself, which we have found to contradict petitioner’s

interpretation.   We do not find the agreement to be ambiguous, so

that, without more (e.g., the opinion of counsel), we cannot

conclude that petitioner had reasonable cause for reaching the

interpretation she did.

     We sustain respondent’s determination of the addition to tax

under section 6651(a) and the penalty under section 6662(a).

     E.   Section 6654

     Respondent determined additions to tax under section 6654

(the section 6654 additions) for failure to pay estimated tax.

On brief, respondent states:   “Petitioner underpaid her estimated

tax in both 1994 and 1995 because she erroneously failed to

report the payments from Mr. Mooney as pension income.

Therefore, she is liable for the   * * * [section 6654 additions

to tax].”

     Since petitioner filed returns for both years in issue,

section 6665(b) provides, in general, that the section 6654

additions are not treated as taxes for purposes of the deficiency
                                - 14 -

procedures provided for in subchapter B, chapter 63 of the Code

(sections 6211 through 6216).    Section 6214(a) provides:

     SEC. 6214.    DETERMINATION BY TAX COURT.

       (a) Jurisdiction as to Increase of Deficiency,
     Additional Amounts, or Additions to the Tax.--Except as
     provided by section 7463, the Tax Court shall have
     jurisdiction to redetermine the correct amount of the
     deficiency even if the amount so redetermined is
     greater than the amount of the deficiency, notice of
     which has been mailed to the taxpayer, and to determine
     whether any additional amount, or any addition to the
     tax should be assessed, if claim therefor is asserted
     by the Secretary at or before the hearing or a
     rehearing. [Emphasis added.]

Whether we have jurisdiction to determine the section 6654

additions turns on the meaning of the underscored portion of

section 6214(a).    Cf., e.g., Estate of Nemerova v. Commissioner,

T.C. Memo. 1998-186, holding that, with respect to the additions

to tax there in question, under section 6651(a)(1) and (2), we

had jurisdiction under section 6214(a) to determine so much of

the addition under section 6651(a)(1) as was applicable to the

deficiency in tax and the addition under section 6651(a)(2).      We

held that we have no jurisdiction to determine the addition under

section 6651(a)(1) applicable to the tax assessed by respondent

upon receipt of the return.

     Neither party has addressed our jurisdiction to consider the

section 6654 additions.    Nevertheless, we believe that respondent

erred in determining those additions.    We shall set forth our
                               - 15 -

analysis of the issue for the parties’ consideration, and we

shall enter decision under Rule 155.

     In pertinent part, section 6654(a) provides:

     in the case of any underpayment of estimated tax by an
     individual, there shall be added to the tax * * * an amount
     determined by applying--

          (1)    the underpayment rate established under section
                 6621,
          (2)    to the amount of the underpayment,
          (3)    for the period of the underpayment.

The amount of the underpayment is the excess of the required

payment over the amount of the installment paid.    See sec.

6654(b)(1).   The amount of the required payment is 25 percent of

the required annual payment.   See sec. 6654(d)(1)(A).   The

required annual payment is the lesser of (1) 90 percent of the

tax shown on the return for the taxable year, or (2) 100 percent

of the tax shown on the return for the preceding year.    See sec.

6654(d)(1)(B).

     Respondent’s determination that petitioner underpaid her

estimated taxes is based on petitioner’s tax liability as

determined in the notice.   Respondent uses an incorrect basis for

determining whether petitioner underpaid her estimated taxes.

Petitioner’s estimated tax liability is based on her tax

liability as stated on her original tax returns, and not on the

notice of deficiency or her ultimate tax liability.    See Gleason

v. Commissioner, T.C. Memo. 1990-110; Warda v. Commissioner, T.C.

Memo. 1988-572; Sampson v. Commissioner, T.C. Memo. 1986-231.
                               - 16 -

      The 1994 return shows a total tax due of $6,798.97 and

total payments of $9,871.12.   Therefore, based on the 1994

return, petitioner overpaid her taxes for 1994 and did not have

an underpayment.

     The record does not contain a copy of the 1995 return.

Nevertheless, the notice states that the total tax shown on the

1995 return is $13,431 and that petitioner made total payments of

$7,161.   Therefore, the 1995 tax return reflected an underpayment

of tax in the amount of $6,270.    Petitioner did not make payments

in 1995 that equaled 90 percent of the tax shown on the 1995

return.   However, petitioner’s estimated tax payments in 1995 of

$7,161 were more than 100 percent of the tax that had been shown

on the 1994 tax return--$6,798.97.      Therefore, we calculate that

petitioner satisfied the safe harbor provisions of section

6654(d)(1)(B).    Respondent does not contest that the safe harbor

does not apply.


                                            Decision will be entered

                                     under Rule 155.
