12 T.C. 224">*224 This proceeding involves a deficiency1949 U.S. Tax Ct. LEXIS 271">*272 in income tax for the calendar year 1944 in the amount of $ 296.45.

12 T.C. 224">*225 The single issue presented is whether respondent was correct in disallowing, under the provisions of sections 23 (u) and 22 (k) of the Internal Revenue Code, a deduction of $ 1,150 claimed by petitioner in 1944 for alimony paid to his former wife.

FINDINGS OF FACT.

The petitioner, Frank R. Casey, is an individual whose last known residence was at 1274 Hall Avenue, Lakewood, Ohio. His income tax return for the calendar year 1944 was filed with the collector of internal revenue for the eighteenth district of Ohio.

Frank R. Casey was divorced from his wife, Emma Casey, by an order of the Court of Common Pleas for the County of Cuyahoga, State of Ohio, dated July 12, 1944. The journal entry therein provided in part as follows:

It is further ordered, [adjudged] and decreed that the defendant pay to the plaintiff as alimony the sum of Five Thousand Dollars ($ 5000.00) at the rate of One Hundred Dollars ($ 100.00) per month, said payments to start upon the signing of this decree and to continue until the full amount is paid out, or until the plaintiff remarries.

In his individual income tax return for 1944 petitioner1949 U.S. Tax Ct. LEXIS 271">*273 claimed a deduction of $ 1,150 for alimony payments made in that year pursuant to the court order of July 12, 1944. After being advised of the Commissioner's determination that such amounts were not deductible from his gross income under the provisions of section 23 (u) of the Internal Revenue Code, counsel for petitioner drew a journal entry which was signed by the Court of Common Pleas of the County of Cuyahoga, State of Ohio, and entered in its records on September 10, 1947. This journal entry reads as follows:

* * * the court being fully advised that the Income Tax Division of the Internal Revenue Department has placed an interpretation upon the former Journal Entry in this case, dated July 12th 1944, which is inconsistent with and does not comply with or express the intention of the Court and counsel originally intended.

Now, Therefore, the Court Hereby Orders, Adjudged [sic] and Decrees that the original order in this case be amended nuno pro tuno [sic] to read as follows:

* * * *

It is further ordered, adjudged and decreed that the defendant pay to the plaintiff as alimony the sum of One Hundred Dollars ($ 100.00) per month for the period of fifty (50) months from1949 U.S. Tax Ct. LEXIS 271">*274 the date of the original decree, that the above order is not a lump sum judgment or settlement, but merely periodic payments of alimony, and said payments are to cease and terminate when and if the plaintiff remarries.

It is further ordered, adjudged and decreed that the plaintiff shall pay the income tax to the Federal Government on said payments.

* * * *

12 T.C. 224">*226 OPINION.

If we are to follow our decision in J. B. Steinel, 10 T.C. 409, there can be no doubt that the alimony provision embodied in the court order dated July 12, 1944, resulted in "installment" rather than "periodic" payments under section 22 (k) of the Internal Revenue Code. ¹1949 U.S. Tax Ct. LEXIS 271">*275 Such payments are not deductible by the husband under section 23 (u) of the code. ² Thus, unless the court order dated September 10, 1947, entitles the petitioner to deduct the alimony payments made by him in 1944, it is clear that the respondent's determination must be sustained.

In order to eliminate from the order of July 12, 1944, the statement of the principal sum of $ 5,000, in figures, the journal entry in the order of September 10, 1947, provided simply for the payment of "One Hundred Dollars ($ 100.00) per month for the period of fifty (50) months." It further stated that the payments were "periodic" and that the wife was obliged to pay the Federal income tax on such installments.

We have recently held that there is no material difference between a decree where the total amount is expressly set out and one where it is necessary to multiply the weekly payments by the number of weeks over which they were to be paid in order to determine the principal sum specified. Estate of Frank P. Orsatti, 12 T.C. 188.

It 1949 U.S. Tax Ct. LEXIS 271">*276 would therefore appear that under the alimony provisions of either the original or the amended decree the principal sum of the obligation is specified in the decree and is made payable within a period ending less than 10 years from the date of the order. This results in the classification of the payments made under either decree as "installment" payments within the meaning of section 22 (k). As such, 12 T.C. 224">*227 they are not deductible by the husband under section 23 (u).

We attach no weight to the fact that the amended decree, as prepared by petitioner's counsel and adopted by the court, attempted to characterize the alimony payments as "periodic" and not "installment." That is a determination to be made by this Court upon consideration of all the facts. Nor does the provision in the amended decree to the effect that the wife should pay a tax on her alimony have any significance in the instant proceeding. It is Congress that imposes the tax, and this may not be changed by prior agreements. Moreover, what petitioner seeks is a deduction, and deductions are a matter of legislative grace. New Colonial Ice Co. v. Helvering, 292 U.S. 435">292 U.S. 435.

In view 1949 U.S. Tax Ct. LEXIS 271">*277 of our disposition of the principal issue herein, we find it unnecessary to consider the possible effect of a nunc pro tunc decree in so far as it attempts retroactively to alter the terms of the original decree and thereby the tax liability of the parties. On the authority of J. B. Steinel, supra, and Estate of Frank P. Orsatti, supra, the respondent's determination must be sustained.

Decision will be entered for the respondent.