NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 05a0556n.06
                              Filed: June 28, 2005

                                           No. 04-5580

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


RUBEN FREYRE,                                            )
                                                         )       ON APPEAL FROM THE
       Plaintiff-Appellant,                              )       UNITED STATES DISTRICT
                                                         )       COURT FOR THE WESTERN
v.                                                       )       DISTRICT OF TENNESSEE
                                                         )
UNITED STATES OF AMERICA,                                )                          OPINION
                                                         )
       Defendant-Appellee.                               )



BEFORE:        COLE and SUTTON, Circuit Judges; ZATKOFF, District Judge*

       Lawrence P. Zatkoff, District Judge. Plaintiff-Appellant, Ruben Freyre (hereinafter,

“Taxpayer”), appeals the District Court’s grant of Summary Judgment for Defendant-Appellee

United States (hereinafter, “the Government”). Because the district court did not err in concluding

that Taxpayer was a “married individual” for the 1996 tax year, we AFFIRM the judgment of the

district court as to this issue. We find that the district court erred, however, in concluding that

Taxpayer’s $1,460.50 monthly payments should be considered as non-deductible child support.

Accordingly, we REVERSE the judgment of the district court as to this issue.




       *
       The Honorable Lawrence P. Zatkoff, United States District Judge for the Eastern District
of Michigan, sitting by designation.
                                      I. BACKGROUND

A. Factual History

       Taxpayer married Esther Evans (hereinafter, “Spouse”) in 1990. The couple have one child.

On February 9, 1996, Spouse filed suit for divorce against Taxpayer in Tennessee. Spouse also

obtained a temporary restraining order against Taxpayer. Thereafter, Taxpayer resided at a separate

location. On March 18, 1996, Spouse filed a Motion Pendente Lite asking for alimony and child

support pendente lite.

       On or about May 30, 1996, attorneys for Spouse and Taxpayer announced to the divorce

referee that they had reached an agreement where Taxpayer would pay Spouse monthly payments

for child support, rent, auto, and insurance payments. See J.A. at 135.     The divorce referee set

down this agreement in a handwritten consent order stating that “husband to pay $1,460.50 per mo.

child support, rent $850 (for wife), auto payment and ins. (for wife).” See J.A. at 132. Thereafter,

Spouse’s attorney prepared a consent Order on Motion Pendente Lite and obtained the signatures

of attorneys for both Taxpayer and Spouse. On June 5, 1996, the divorce court judge signed and

entered the Order. See J.A. at 61-62. In addition to the $850 monthly payment for rent and $790

monthly car payment, the Order required Taxpayer to pay Spouse $1,460.50 per month “as and for

support.” See 

this Order, Taxpayer made these payments during the 1996 tax year.

       When Taxpayer computed his 1996 federal income tax, he filed as a “single” taxpayer and

deducted $24,804 as alimony, including $11,684 representing the eight monthly payments of

$1,460.50. In reviewing Taxpayer’s deduction, the IRS determined that Taxpayer should have filed

as a “married individual,” and that Taxpayer improperly deducted the $11,684 as alimony because

this payment to Spouse should have been considered non-deductible child support. In response to


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the IRS’s asserted tax deficiency, Taxpayer paid the deficiency.

B. Procedural History

       Taxpayer brought the Present Complaint on February 19, 2003 seeking a refund regarding

his 1996 federal taxes. Taxpayer brought his Complaint in the Western District of Tennessee where

it was heard by Judge Samuel H. Mays, Jr. Both Taxpayer and Defendant United States brought

motions for summary judgment. On January 29, 2004, the district court denied Taxpayer’s motion

for summary judgment and granted Defendant’s. See J.A. at 144. In granting Defendant’s motion

for summary judgment, the district court held (1) that Taxpayer was not entitled to file as a “single”

taxpayer and (2) that the divorce court’s consent order did not modify the parties’ earlier agreement

which described the $1,460.50 monthly payment as child support. Taxpayer appealed the district

court’s order to this Court.



                                     II. LEGAL STANDARD

       The Court reviews a district court’s grant of summary judgment de novo. See Watkins v. City

of Battle Creek, 

, 685 (6th Cir. 2001). Summary judgment is appropriate when there

are no issues of material fact in dispute, and the moving party is entitled to judgment as a matter of

law. See FED. R. CIV. P. 56(C). In deciding a motion for summary judgment, the court must view

the factual evidence and draw all reasonable inferences in favor of the nonmoving party. See

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 

, 587, (1986). The nonmoving party

must set forth specific facts showing that there is a genuine issue for trial. A genuine issue for trial

exists “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 

, 248, (1986).


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                                         III. ANALYSIS

       There are two issues before the Court: (1) Whether Taxpayer was a “single” taxpayer or a

“married individual” in 1996, and (2) Whether Taxpayer was entitled to an alimony deduction for

the $1,460.50 monthly payments he paid to Spouse.

A. Taxpayer was a “married individual” pursuant to IRC § 7703(a)(2).

       Taxpayer asserts that he was entitled to file his 1996 federal taxes as a “single” taxpayer.

Both the IRS and the district court disagreed with Taxpayer’s assertion. This Court also disagrees

with Taxpayer.

       Section 7703(a)(2) of the Internal Revenue Code states: “an individual legally separated from

his spouse under a decree of divorce or of separate maintenance shall not be considered as married.”

26 U.S.C. § 7703(a)(2). In order to determine whether Taxpayer was “legally separated,” the Court

looks to state law. See Boyer v. Commissioner, 

, 194 (D.C. Cir. 1984) (“a party must

be legally separated under state law in order to be eligible to file as single for federal income tax

purposes.”).

       Under Tennessee law, there are two ways by which a married couple can alter their marital

status. One way is divorce; the other legal separation. See Tenn. Code. Ann. § 36-4-102 (“A party

who alleges grounds for divorce from the bonds of matrimony may, as an alternative to filing a

complaint for divorce, file a complaint for legal separation.”). Neither Taxpayer nor Spouse filed

for legal separation, and Taxpayer’s divorce was not finalized until 1998. Accordingly, Taxpayer

was not entitled to file as a “single” individual and the IRS properly required Taxpayer to file his

1996 tax return as a “married individual.”

       Despite the clear meaning of IRC § 7703(a)(2) and the uniform application of the section by


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the courts, Taxpayer attempts to rewrite IRC §7703(a)(2) by referring the Court to the alimony

provisions of IRC § 71. IRC § 71 states that a taxpayer’s gross income includes amounts received

as alimony. In defining what constitutes alimony, IRC § 71(b)(1)(C) mentions the term “legally

separated.” Taxpayer then directs the Court to Treasury Regulation 1.71-1(2)(b)(3)(i) which further

explains the term “legally separated”:

       “It is not necessary for the wife to be legally separate or divorced from her husband
       under a court order or decree if the parties live apart, do not file joint tax returns, and
       the wife receives payment from her husband under a decree of alimony pendente lite
       requiring the husband to make payments for her support.”

Taxpayer then concludes that Treasury Regulation 1.71-1(2)(b)(3)(i)’s explanation of “legally

separated” applies to IRC § 7703(a)(2)’s use of the term. The Court disagrees.

       IRC § 71's use of the term “legally separated” makes no reference to the requirement of IRC

§ 7703(a)(2) that a married individual must be “legally separated” to file a tax return as a single

person. The Court will not rewrite IRC § 7703(a)(2)’s “legally separated” requirement based on a

treasury regulation’s explanation of an unrelated section of the Code. Instead, and in accord with

the plain meaning of IRC § 7703(a)(2) as well as its interpretation by the courts, the Court finds that

Taxpayer was not entitled to file as a “single” individual and that the IRS properly required

Taxpayer to file his 1996 tax return as a “married individual.”

B. Taxpayer’s $1,460.50 monthly payments must be considered as alimony under the tax code.

       Under the tax code, a payor spouse’s payments to the payee spouse may be considered as

either non-deductible child support or deductible alimony. Alimony is deductible from the payor

spouse’s income, but should be included in the payee spouse’s income. See IRC § 215(a); see also

IRC § 71(a). Conversely, child support is non-deductible from the payor spouse and is not included

in the payee spouse’s income. See IRC § 71(c)(1).

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       Taxpayer argues that his monthly payments of $1,460.50 to his spouse should not be

considered as child support because the payments were not specifically designated as child support.

Paragraph 1 of the Divorce Court’s Order on Motion Pendente Lite stated: “Ruben Hector Freyre

. . . is hereby ordered to pay to the Plaintiff each month the sum of One Thousand Four Hundred

Sixty Dollars and Fifty Cents ($1,460.50) as and for support . . .” See JA at 61. Because there was

no mention in the Order of “child support,” Taxpayer asserts that the IRS should have considered

his $1,460.50 monthly payments as alimony and should have granted him a deduction under IRC

§ 215(a).

       In support of his argument, Taxpayer relies on the tax code and regulations. IRC § 71(a)

states that alimony payments are includible as gross income of the payee spouse. Any payments

which are “fixed” as child support, however, are not includible as gross income. § 71(c)(1) provides

this exception:

       [§ 71(a)] shall not apply to that part of any payment which the terms of the divorce
       or separation instrument fix (in terms of an amount of money or a part of the
       payment) as a sum which is payable for the support of children of the payor spouse.

Treasury Regulation 1.71-1(e) explains the meaning of § 71:

       Section 71(a) does not apply to that part of any periodic payment which, by the terms
       of the decree, instrument, or agreement under section 71(a), is specifically
       designated as a sum payable for the support of minor children of the husband. . . . If,
       however, the periodic payments are received by the wife for the support and
       maintenance of herself and of minor children of the husband without such specific
       designation of the portion for the support of such children, then the whole of such
       amounts is includible in the income of the wife as provided in section 71(a).

26 C.F.R. § 1.71-1(e) (emphasis added).

       In response, the Government argues that the parties clearly agreed that the $1,460.50

monthly payment was child support. As support, the Government points to the following undisputed


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facts. The parties’ May 30, 1996 agreement with the divorce referee specified $1,460.50 per month

for child support, $850 per month for rent, and an unspecified amount per month for car payments

and insurance. J.A. at 132. Thereafter, when the agreement was reduced to a written order and

given to the Divorce Judge to sign, the Order called for monthly payments of $850 for rent and $790

for car payments and insurance. 

Instead of a $1,460.50 monthly payment for “child

support,” however, the Order merely designated the $1,460.50 monthly payment “as and for

support.” 

has some sympathy for the Government’s position that it is unlikely that, in

drafting the consent order, the parties intentionally omitted the word “child” in order to substantially

alter their prior agreement, thereby rendering the $1,460.50 monthly payment as alimony instead

of child support. That said, there is one piece of evidence suggesting that one of the parties did think

the $1,460.50 monthly payment should be treated at least in part as alimony. In her deposition,

Spouse stated: “My understanding [is that] it was to be used toward the bills and to take care of our

son. Just to continue the household as it was.” J.A. at 119. Nevertheless, it seems inequitable to

conclude that Taxpayer be given a deduction for this payment based on the omission in the consent

order, and that Taxpayer’s spouse be required to include the payment in her taxable gross income.

Nevertheless, such a conclusion is precisely what the tax code requires.

       Even though it remains unclear whether the parties agreed that the payment was child

support, and even if the better reading of the record suggests that the payments should be treated as

child support, the tax code and regulations require that the divorce instrument “specifically

designate” a payment as child support. See IRC § 71(c)(1); see also Treasury Regulation 1.71-1(e).

The prior agreement of the parties before the divorce referee does not constitute a binding divorce


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instrument. Therefore, regardless of any previous agreement or any mistake in the drafting of the

Divorce Court’s Order, Taxpayer is correct that the divorce instrument did not specifically designate

the $1,460.50 monthly payment as child support as required by IRC § 71(c)(1).

       In addition to the clear language of the tax code and tax regulations, Taxpayer finds further

support in Commissioner v. Lester, 

, 306 (1961). In Lester, the Supreme Court held

that “the allocations to child support made [in divorce agreements] must be ‘specifically designated’

and not left to determination by inference or conjecture.” Commissioner v. Lester, 

,

306 (1961). Though part of Lester’s holding was overruled by IRC § 71(c)(2), Lester’s “specifically

designated” requirement is still applicable and was followed in Treasury Regulation 1.71-1(e). See

Preston v. Commissioner, 

(11th Cir. 2000); see also 26 C.F.R § 1.71-1(e).

       Based on IRC § 71(c)(1), Treasury Regulation 1.71-1(e), and Commissioner v. Lester, the

Court finds that the Divorce Court’s Order did not “specifically designate” or “fix” the $1,460.50

monthly payment as child support.        Accordingly, the $1,460.50 monthly payment must be

considered as alimony and thus is deductible by Taxpayer under IRC § 215.



                                       IV. CONCLUSION

       For the reasons stated above, we AFFIRM the judgment of the district court as to its

conclusion that Taxpayer was a “married individual” for the 1996 tax year. We REVERSE the

judgment of the district court that Taxpayer’s $1,460.50 monthly payments should be considered

as non-deductible child support. Accordingly, we REMAND the case to the district court with

instructions to enter judgment consistent with this opinion.




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