7 T.C. 723">*724 The respondent1946 U.S. Tax Ct. LEXIS 82">*83 determined deficiencies in income tax and income and victory tax for the years 1941 and 1943 in the respective amounts of $ 3,467.58 and $ 10,028.63. He also added negligence penalties under section 293(a) of the Internal Revenue Code in the respective amounts of $ 173.38 and $ 501.43. Respondent has stipulated that the 5 per cent negligence penalties are not applicable to the deficiencies determined for the taxable years. Effect will be given to this stipulation in a recomputation under Rule 50.

The deficiencies in income tax result from several adjustments in each of the taxable years. By stipulations, the parties have disposed of all items except a claim for deductions under section 23(u) of the code, and that claim presents the only issue for decision by this Court. Effect will be given to the stipulations of the parties with respect to the amounts of petitioner's taxable net income for the years 1941, 1942, and 1943 in recomputations to be made by the parties under Rule 50.

The only question remaining is whether petitioner can deduct, under section 23(u), payments made to his wife during 1942 and 1943 for her support. No issue remains for 1941.

Petitioner filed his returns1946 U.S. Tax Ct. LEXIS 82">*84 with the collector for the twenty-third district of Pennsylvania.

FINDINGS OF FACT.

For the year 1942 petitioner deducted $ 2,712.83 as payments made to his wife as "alimony." That is the correct amount of payments made from July 7 to December 31, 1942. The above sum was paid to the wife for her support.

For the year 1943 petitioner deducted $ 5,606.85 as payments made to his wife as "alimony." The correct amount of the payments is $ 5,407.20. Petitioner concedes that the difference between the two amounts properly has been added to his taxable income. Of the sum of $ 5,407.20, $ 2,298.42 was made pursuant to oral agreement, and $ 3,108.78 was made pursuant to a court order requiring the payment of alimony pendente lite and counsel fees, i. e., $ 250 for fees, and $ 100 for expenses of counsel in the divorce action.

7 T.C. 723">*725 Petitioner was married to Margaret I. Wick. He left his home on July 7, 1942.

On May 28, 1943, Margaret Wick started an action for a divorce a mensa et thoro, a limited divorce. On June 3, 1943, she filed a petition for alimony pendente lite and counsel fees. After hearing, the Court of Common Pleas of Allegheny County entered an order dated1946 U.S. Tax Ct. LEXIS 82">*85 July 20, 1943, ordering petitioner to pay Margaret Wick $ 600 for maintenance and support up to August 1, 1943, and to pay her, thereafter, $ 375 per month for maintenance and support as alimony pendente lite; and to pay counsel fees of $ 250, and expenses of $ 100. The order provided as follows:

Order of Court

And now, to-wit, this 20th day of July, 1943, the petition of the libellant for alimony and counsel fees and expenses pendente lite, having come on to be heard and after full hearing thereon and due consideration of the testimony presented at said hearing, it is ordered, adjudged and decreed that the respondent, George D. Wick, shall pay counsel fees of the libellant to date, in the sum of Two hundred fifty ($ 250.00) Dollars; that the said George D. Wick shall pay expenses to date in the sum of One hundred ($ 100.00) Dollars; that the respondent, George D. Wick, shall pay to Margaret I. Wick, libellant, the sum of Six hundred ($ 600.00) Dollars for maintenance and support up to August 1st, 1943, and thereafter, that the said George D. Wick shall pay to Margaret I. Wick, libellant, the sum of Three hundred and seventy-five ($ 375.00) Dollars per month for maintenance and1946 U.S. Tax Ct. LEXIS 82">*86 support as alimony pendente lite.

It being understood that, in addition to these amounts, the respondent, George D. Wick, should pay for the maintenance and upkeep of the property in which the libellant and her minor daughter live; the taxes thereon and the upkeep; without prejudice to the right of counsel for libellant to make application for additional amounts of counsel fees and expenses and that the amount or amounts of alimony pendente lite shall not be final or conclusive or indicative of the amount of money to be paid to the libellant, should there be a decree for divorce a mensa et thoro. The counsel fees and expenses allowed herein do not include any allowance for the proceedings at No. 1965 July Term, 1943, in this Court, for which no allowance is asked at this time.

On July 2, 1943, petitioner filed suit against Margaret Wick asking for a divorce from the bonds of matrimony, an absolute divorce.

The two cases were tried together.

On January 22, 1944, the Court of Common Pleas denied petitioner's libel for an absolute divorce, and granted to Margaret Wick a divorce a mensa et thoro.

The petitioner appealed both decisions to the Superior Court of Pennsylvania and on 1946 U.S. Tax Ct. LEXIS 82">*87 September 27, 1944, that court sustained the Court of Common Pleas in refusing to grant the petitioner an absolute divorce from his wife, but reversed the Court of Common Pleas in the suit of Margaret I. Wick for a divorce a mensa et thoro.

Appeals were taken from these two decisions to the Supreme Court of Pennsylvania, which court, in an opinion filed on April 9, 1945, 7 T.C. 723">*726 sustained the Court of Common Pleas both in its granting Mrs. Wick a divorce a mensa et thoro and in its refusing the petitioner's action for an absolute divorce.

The net income of the petitioner for the year 1941 was $ 25,064.43.

The taxable net income of the petitioner for the year 1942 was $ 21,547.26, exclusive of any adjustment for the amount claimed as a deduction from gross income and alleged by the petitioner to represent alimony.

The taxable net income of the petitioner for the year 1943 was $ 26,905.61 for income tax purposes and $ 27,070.96 for victory tax purposes, exclusive of any adjustment for the amount claimed as a deduction from gross income and alleged by the petitioner to represent alimony.

OPINION.

During the period July 7 to December 31, 1942, petitioner and his wife were voluntarily1946 U.S. Tax Ct. LEXIS 82">*88 separated, and the payments which petitioner made to his wife for her support, aggregating $ 2,712.83, were made under an oral agreement. During this period, his wife was not legally separated or divorced from petitioner under a decree of separate maintenance or under a decree of divorce. Therefore, the payments made in 1942 were not payments which Margaret Wick was required to report in her gross income under section 22 (k) of the Internal Revenue Code. It follows that petitioner is not entitled to any deduction from his income for 1942 under section 23 (u). It is so held. See Charles L. Brown, 7 T.C. 715, and Frank J. Kalchthaler, 7 T.C. 625.

The above holding applies equally to payments made to Margaret Wick during 1943, aggregating $ 2,298.42.

There remains the question whether payments made as alimony pendente lite for the support of Margaret Wick, which were made pursuant to the court order of July 20, 1943, are deductible from petitioner's 1943 income. The total amount of these payments was $ 3,108.78.

Respondent contends that since no decree of divorce was entered until January 22, 1944, the payments1946 U.S. Tax Ct. LEXIS 82">*89 of "temporary alimony" were not deductible under section 23 (u). He relies upon section 22 (k); T. D. 5425; and Regulations 111, Supplement, section 29.22 (k). In that regulation an example is given, which is set forth in the margin. ¹

7 T.C. 723">*727 Petitioner contends, under this part of the general issue, that the Court of Common Pleas, by its order of July 20, 1943, recognized the existence of the separation, and that the payments of alimony pendente lite1946 U.S. Tax Ct. LEXIS 82">*90 were made pursuant to a decree of separate maintenance within the meaning of section 22 (k). Petitioner regards the entire sum of $ 3,108.78, including fees and costs, as "alimony," or payments received by the wife subsequent to a "decree of separate maintenance." Petitioner does not cite any cases or authorities to support his argument other than section 22 (k), and a special ruling of the Treasury Department, dated December 8, 1944, which he cites for a statement which describes the nature of "alimony." See C. C. H. Federal Tax Reporter, 1945, vol. 4, par. 6092. ²

The claim of petitioner for a deduction under section 23 (u) depends upon whether payments of alimony pendente lite come within section 22 (k), so as to be includible in the gross income of petitioner's wife during 1943.

Section 22 (k) reads, in part, as follows:

(k) Alimony, 1946 U.S. Tax Ct. LEXIS 82">*91 Etc., Income. -- In the case of a wife who is divorced or legally separated from her husband under a decree of divorce or of separate maintenance, periodic payments (whether or not made at regular intervals) received subsequent to such decree in discharge of, or attributable to property transferred (in trust or otherwise) in discharge of, a legal obligation which, because of the marital or family relationship, is imposed upon or incurred by such husband under such decree or under a written instrument incident to such divorce or separation shall be includible in the gross income of such wife, and such amounts received as are attributable to property so transferred shall not be includible in the gross income of such husband.

Petitioner's contention must be rejected. Of course, the order to pay alimony pendente lite was not a decree of separate maintenance, as that phrase is used in section 22 (k); and it was not, in its legal effect, a decree of legal separation. The meaning of "alimony pendente lite" is well understood in law, and in modern times the courts, in their discretion, have granted such allowance, depending on the need of the petitioner, for the purpose of enabling1946 U.S. Tax Ct. LEXIS 82">*92 her (or him) to prosecute a suit for divorce. Gundry v. Gundry (Okla.), 68 P. 509, 510; Westerfield v. Westerfield, 36 N. J. Eq. 195, 197. See Words and Phrases, definition and discussion of Alimony Pendente Lite.

Under Pennsylvania statutes and decisions, alimony pendente lite begins when the order is granted and continues until final decree; Coolidge v. Coolidge, 18 Phila. 295">18 Phila. 295; 43 Lans. Ch. I. 37. It is limited to the pendency of a suit for divorce, and it ends when the case ends. Purdon's Penna. Stat. Ann., Title 23, par. 46, note 6.

7 T.C. 723">*728 In Charles L. Brown, supra, we pointed out that the Congress did not intend to include under section 22 (k) payments made during "any legal separation," but intended to include only payments made where a separation of the spouses had been consummated "under a decree * * * of separate maintenance."

And so, in this case, while the separation of the spouses in 1943, at the time a suit for divorce was pending, may have been a legal separation by voluntary consent and agreement of the spouses, it had not yet1946 U.S. Tax Ct. LEXIS 82">*93 been consummated under a decree of separate maintenance. The latter phrase has the same meaning as a decree of separation. In Pennsylvania, a divorce a mensa et thoro, as distinguished from a divorce a vinculo, is regarded as legal separation. Hence, the decree entered on January 22, 1944, granting petitioner's wife a divorce a mensa et thoro, is the decree which would be regarded as "a decree * * * of separate maintenance," if we were considering payments by petitioner after January 22, 1944, made under such decree.

Accordingly, during 1943 the wife of petitioner was not legally separated from him "under a decree * * * of separate maintenance." She was not in the class described in section 22 (k) at any time in 1943, either after or before the order to petitioner to pay alimony pendente lite was made on July 20, 1943. The situation here resembles that in the case of Charles L. Brown, supra, despite some differences in the facts. Petitioner was still obligated to support his wife, no decree of divorce of any kind having been entered, by virtue of his obligations under his marriage contract.

Section 22 (k) relates to "alimony." From1946 U.S. Tax Ct. LEXIS 82">*94 a careful reading of the language it is apparent that the Congress did not intend to include under this section any payment which may be called "alimony." The payments involved here were "alimony pendente lite," but such payments are not provided for nor described in section 22 (k). They were payments pending a suit for a divorce. The section refers to "payments * * * received subsequent to such decree [decree of divorce or of separate maintenance]." (Italics added.)

It is held that the payments of alimony pendente lite in 1943 were not payments which petitioner's wife was required to include in her gross income under section 22 (k), and that petitioner is not entitled to deduct the sum of $ 3,108.78 under section 23 (u). Respondent's determination is sustained.

While the entire issue presented is decided in the respondent's favor, recomputations are required under Rule 50 because of stipulations filed.

Decision will be entered under Rule 50.