16 T.C. 916">*916 OPINION.

The respondent determined a deficiency in petitioner's income tax for the year 1945 in the amount of $ 193.36. The question is whether amounts paid to petitioner's wife for alimony pendente lite, attorney's fees and court costs are deductible from petitioner's income for the year 1945. The respondent has conceded the issue involving the right of petitioner to compute his tax by using the optional standard deduction should his claimed deductions above-mentioned be disallowed by this Court1951 U.S. Tax Ct. LEXIS 214">*215 to such extent that it would be more advantageous to him to use such standard deduction.

All of the facts are stipulated and they are so found.

Petitioner's return for the year involved was filed with the collector of internal revenue for the first district of California.

The petitioner was married to Thelma Knight McKinney on August 9, 1930, in Carson, Nevada. They separated on or about December 20, 1943. On June 18, 1945, the petitioner filed an action for divorce in San Francisco County, California. On July 19, 1945, Thelma filed an answer to the complaint and a cross-complaint in which, among other things, she requested $ 200 per month for her support and maintenance during the pendency of the divorce action. After a hearing the court entered an order dated July 30, 1945, for alimony pendente lite, counsel fees and court costs. The order of the court directed the petitioner to pay Thelma the sum of $ 120 per month for a period of 2 months, the sum of $ 125 to be paid to Thelma's attorney and the additional sum of $ 20 for costs of court.

16 T.C. 916">*917 Pursuant to that order the petitioner paid Thelma $ 420, $ 175 to her attorney ¹ and $ 20 to the court for costs. He also1951 U.S. Tax Ct. LEXIS 214">*216 paid $ 100 to his own attorney.

An interlocutory decree of divorce was granted to Thelma on January 31, 1946. In this decree it was provided, among other things, that petitioner pay Thelma for her maintenance and support the following sums of money: for the first 2 years, $ 100 per month; for the next 3 years, $ 75 per month; and for the next 2 years, $ 50 per month. None of those amounts are involved in this proceeding. Thereafter a final decree of divorce was entered on February 24, 1947.

In the return filed by the petitioner for the year 1945 he claimed a total deduction in the amount of $ 1,115. Of that amount the respondent disallowed $ 715, itemized as1951 U.S. Tax Ct. LEXIS 214">*217 follows:

We see no basis whatever for deducting either the attorney's fees for Thelma in the amount of $ 175 or court costs of $ 20, or petitioner's attorney's fees in the amount of $ 100. See George D. Wick, 7 T.C. 723, 724, 727; affd., 161 F.2d 732; Frank J. Loverin, 10 T.C. 406; Regulations 111, section 29.24-1. See also Lindsay C. Howard, 16 T.C. 157. We therefore shall not further consider these items, and direct our attention to the payment of $ 420 which petitioner made to Thelma.

Whether the payments of alimony pendente lite are deductible under section 23 (u) depends upon whether they come within the provisions of section 22 (k) ² set forth in the margin. We agree with respondent that the payments in question here are not properly deductible.

1951 U.S. Tax Ct. LEXIS 214">*218 Section 22 (k) is limited in its application to payments made to "a wife who is divorced or legally separated from her husband under a 16 T.C. 916">*918 decree of divorce or of separate maintenance * * *." Frank J. Kalchthaler, 7 T.C. 625, 628. We said in that case as follows:

The construction which must be placed upon section 22 (k) with respect to the question presented here is that it relates to periodic payments made under a decree of separate maintenance to a wife who is legally separated or divorced from her husband, but that it does not apply to a decree of separate maintenance made to a wife, who is not legally separated or divorced.

See also Charles L. Brown, 7 T.C. 715, and George D. Wick, supra.

Since under the facts of this case the payments in question were not made by petitioner at a time when his wife was legally separated or divorced from him within the meaning of section 22 (k) we conclude that the deduction in question was properly disallowed.

It follows that the respondent did not err in his determination.

Decision will be entered under Rule 50.