1963 U.S. Tax Ct. LEXIS 152">*152
40 T.C. 57">*57 Respondent determined deficiencies in the income taxes of the petitioner for the calendar years 1958 and 1959 in the respective amounts of $ 548.46 and $ 517.44.
The sole issue for decision is whether petitioner is entitled to deduct as alimony, the amounts of $ 2,600 and $ 2,700, which he paid to his wife from whom he was separated during the years 1958 and 1959, respectively.
FINDINGS OF FACT
Some of the facts were stipulated. The stipulation of facts, together with the exhibits therein identified, is incorporated herein by reference.
The petitioner, Harry L. Clark, resides in West Roxbury, Mass. He filed an individual Federal income tax return for each of the calendar years involved, with the district director of internal revenue at Boston.
Petitioner and Marion A. Clark were married in 1922 or 1923. 1963 U.S. Tax Ct. LEXIS 152">*154 They had nine children, of whom three were minors in the taxable years here involved. In the fall of 1952, the marriage tribunal of the Roman Catholic Archdiocese of Boston made a decree that the petitioner and Marion might thereafter live separate and apart, and that the petitioner should furnish the support of Marion and their minor children. The record herein does not contain a copy of the decree. Petitioner and Marion have lived separate and apart since January 1953. Neither petitioner nor his wife has ever obtained either a decree of separation or a decree of divorce from a civil court.
At some date not shown by the record, petitioner and Marion orally agreed that he would remit to her, for her support, $ 100 every 2 weeks, at the times when he received his paycheck. No written agreement to make said payments, or in any other way setting forth the terms of their separation, has ever been entered into between them.
Pursuant to the above-mentioned oral agreement, petitioner paid Marion $ 2,600 in 1958 and $ 2,700 in 1959. He made said payments 40 T.C. 57">*58 by means of personal money orders which he purchased from various banks and savings and loan associations in Boston. Said1963 U.S. Tax Ct. LEXIS 152">*155 money orders bore on their face no indication of the purpose for which petitioner purchased them or of the purpose for which he sent them to his wife.
Petitioner deducted $ 2,600 on his 1958 return and $ 2,700 on his 1959 return as alimony.
Respondent, on audit of petitioner's returns, determined that said claimed deductions for alimony were not allowable.
OPINION
(a) General Rule. --
(2) Written separation agreement. -- If a wife is separated from her husband and there is a written separation agreement executed after the date of the enactment of this title, the wife's gross income includes periodic payments (whether or not made at regular intervals) received after such agreement is executed which are made under such agreement and because of the marital or family relationship * * *
(a) General Rule. -- In the case of a husband described in
The plain words of the statute (
Nor can the decree of the marriage tribunal of the archdiocese of Boston avail petitioner. That decree may or may not have been in writing; it may or may not have spelled out the terms of the separation. In any event, such a decree would hardly seem to constitute an "agreement"; and, moreover, it was handed down in November 1952, long before August 16, 1954.
Petitioner places reliance upon
(3) Decree for support. -- If a wife is separated from her husband, the wife's gross income includes periodic payments (whether or not made at regular intervals) received by her after the date of the enactment of this title from her husband under a decree entered after March 1, 1954, requiring the husband to make the payments for her support or maintenance. 1963 U.S. Tax Ct. LEXIS 152">*158 * * *
The foregoing provision was added to the bill that became the 1954 Code by the Senate Finance Committee, which in its report therein used the term "court decree." (S. Rept. No. 1622, 83d Cong., 2d Sess., pp. 11, 171.) It is our opinion that the "decree" contemplated by the statute is one by a court of civil jurisdiction, and not one by an ecclesiastical court, such as the marriage tribunal of the archdiocese of Boston. Further, that tribunal's decree was entered in November 1952, almost a year and a half prior to March 1, 1954. Hence,The result herein may seem somewhat harsh, for we are fully satisfied that petitioner's payments to Marion fall within the spirit of
In order for the payments to come within the provisions of
See also
It is a familiar principle that deductions are a matter of legislative grace and that a taxpayer seeking a deduction must bring himself squarely within the terms of the statute granting it.
Respondent stated in his statutory notice of deficiency that, if petitioner were held not entitled to the alimony deductions claimed, he would be entitled to an exemption deduction for Marion in 1959 under section 151(b). The deficiency determined1963 U.S. Tax Ct. LEXIS 152">*160 for 1959 accordingly will be recomputed to allow petitioner said exemption deduction.