16 T.C. 1485">*1485 This proceeding involves a deficiency of $ 1,865.04 in income tax for the calendar year 1943. By reason of the Current Tax Payment Act of 1943 the taxable year 1942 is also involved.

The issue is whether respondent erred in disallowing deductions of $ 3,900 for payments to petitioner's wife in each of the years 1942 and 1943.

FINDINGS OF FACT.

The stipulated facts are so found.

Petitioner is an individual residing in Englewood, New Jersey. His income tax return for the calendar year 1942 was filed with the collector of internal 1951 U.S. Tax Ct. LEXIS 142">*143 revenue for Florida. His income and victory tax return for 1943 was filed with the collector of internal revenue for the sixth district of New Jersey.

Petitioner and his first wife, Anna Feinberg, were married in 1918 in New York and were continuously domiciled there until at least December 16, 1943. Two children were born of their marriage: Bernice, born in 1920, and Arthur, born in 1922. Petitioner lived with his wife until about the middle of 1939.

16 T.C. 1485">*1486 On February 10, 1940, after marital difficulties, petitioner and Anna Feinberg entered into a separation agreement providing in part:

NOW, THEREFORE, it is mutually agreed as follows:

* * * *

6. That the first party [petitioner], while the said parties hereto shall both remain alive and so long as the second party [Anna Feinberg] shall fully keep and perform the covenants and conditions to be kept and performed by her under this agreement shall pay to the second party the sum of Three Thousand Nine Hundred ($ 3,900) Dollars per annum in equal weekly installments of Seventy-five ($ 75) Dollars each, commencing with the date hereof.

* * * *

14. The first party further agrees that in the event the children of the marriage, 1951 U.S. Tax Ct. LEXIS 142">*144 to wit: BERNICE FEINBERG and ARTHUR FEINBERG, marry and become self-supporting, that then, and in that event, the alimony to be paid to the second party, as provided in paragraph 6 hereof, shall be reduced to Fifth [sic] ($ 50) Dollars per week instead of Seventy-five ($ 75) Dollars per week; in other words, as and when each of the children of the parties hereto marries and becomes self-supporting, the alimony to be paid to the second party shall be reduced Twelve and 50/100 ($ 12.50) Dollars per week per child.

15. That if, at any future time, the first party shall obtain a valid decree of divorce in the State of New York, against the second party, then, and in that event, this agreement and all the terms and conditions hereof, insofar as they relate to the second party only, shall cease and terminate and neither of the parties hereto shall thereafter be liable hereunder.

16. That in case either party hereto should at any future date and in any jurisdiction, institute suit against the other for a Separation or Divorce, then, and in such event, such party bringing the action shall be obligated to have incorporated in the final Decree in said action the provisions of this agreement.

1951 U.S. Tax Ct. LEXIS 142">*145 On or about March 21, 1940, petitioner instituted an action against Anna Feinberg in Florida. Service by publication only was made on Anna Feinberg. When informed that the suit had been instituted, she gave instructions to her attorney to take all steps short of an appearance to prevent a decree of divorce. On May 27, 1940, petitioner was granted a decree of divorce a vinculo matrimonii by the Circuit Court of the Eleventh Judicial District of Dade County, Florida.

In June 1940 petitioner married his present wife, the former Frances Finn, in Union City, New Jersey. In 1941 Anna Feinberg instituted an action against petitioner herein in the Supreme Court of New York requesting a declaratory judgment to the effect that the Florida divorce decree was null and void and that she was still the true and lawful wife of the petitioner and a reformation of the separation agreement on the ground of fraud. That action was settled by stipulation of the parties dated June 29, 1942, and pursuant thereto the Supreme Court of New York entered a consent judgment in November 1942 declaring that Anna Feinberg was still petitioner's true and lawful wife and also reforming the separation agreement1951 U.S. Tax Ct. LEXIS 142">*146 in part as follows:

16 T.C. 1485">*1487 ORDERED, ADJUDGED AND DECREED that the separation agreement between GEORGE J. FEINBERG and ANNA FEINBERG entered into on the 10th day of February, 1940 be reformed in accordance with the stipulation of settlement * * *.

Subsequently, on or about March 5, 1943, Anna Feinberg instituted suit in the Supreme Court of New York County to compel petitioner herein to comply with the terms of the separation agreement as reformed by the judgment of the Supreme Court of Bronx County. Petitioner counterclaimed, seeking to modify this judgment by eliminating therefrom the provision that Anna Feinberg was his true and lawful wife. On May 18, 1943, the Supreme Court of New York County rendered its decision allowing Anna Feinberg's claim and denying petitioner's counterclaim.

Pursuant to the separation agreement of February 10, 1940, petitioner made payments to Anna Feinberg in each of the taxable years 1942 and 1943 in the amounts of $ 3,900 of which amounts $ 1,300 in each year were payments for the support of petitioner's two children.

OPINION.

The issue presented for our decision is whether respondent erred in disallowing deductions of $ 3,900 each paid by petitioner1951 U.S. Tax Ct. LEXIS 142">*147 during the taxable years 1942 and 1943 pursuant to the terms of a separation agreement entered into with his wife on February 10, 1940.

The statutory provisions provide for deduction of the payments to a wife when they are includible in the gross income of the wife under section 22 (k) ¹ of the Internal Revenue Code. Section 23 (u) of the Internal Revenue Code. The Florida decree involved herein did not make any provision for alimony payments.

1951 U.S. Tax Ct. LEXIS 142">*148 The allowance or disallowance of the claimed deductions turns therefore upon the question of whether or not the payments were imposed upon or incurred by petitioner under a written instrument 16 T.C. 1485">*1488 "incident to" the Florida divorce decree. This is a question of fact in which the petitioner has the burden of proof. Burnet v. Houston, 283 U.S. 233">283 U.S. 233; cf. Joseph J. Lerner, 15 T.C. 379. In affirming Benjamin B. Cox, 10 T.C. 955, the Third Circuit pointed out that section 22 (k) "envisages a situation in which the agreement between the husband and wife is part of the package of divorce." Cox v. Commissioner, 176 F.2d 226.

The agreement in question herein stated that the party bringing the divorce action "shall be obligated to have incorporated in the final Decree in said action the provisions of this agreement." Yet petitioner, who brought the divorce action in Florida, did not incorporate or have reference made to the provisions of the agreement in the final decree. While it appears that petitioner and his wife had, prior to the execution of the 1951 U.S. Tax Ct. LEXIS 142">*149 separation considered a possibility that petitioner would seek a divorce "* * * the possibility of divorce at some unspecified time is a far different thing from the anticipation of divorce by both parties at the time of the execution of the separation agreement which the statute requires in order that the payments under the separation agreement be considered 'incident' thereto." Joseph J. Lerner, supra, at page 386.

The petitioner has also failed to show, as he alleged, that Anna Feinberg agreed not to contest an action for divorce to be instituted against her by petitioner in the State of Florida or that in consideration for her promise not to contest the Florida divorce proceedings, and as a condition precedent thereto, petitioner agreed to enter a separation agreement under the laws of the State of New York.

Furthermore, events subsequent to the execution of the agreement do not support nor are they consistent with a view that petitioner and his wife were in agreement on the divorce at the time the separation contract was executed. Anna did not have information concerning the specific proceeding involved until after it was instituted in March 1940. 1951 U.S. Tax Ct. LEXIS 142">*150 When informed of this suit she instructed her attorney to use all means short of an appearance to prevent a decree of divorce. Later, in November 1942, the Supreme Court of New York entered a consent judgment reforming the separation agreement and declaring that Anna Feinberg was still petitioner's true and lawful wife pursuant to the stipulation of the parties dated June 29, 1942. In a subsequent proceeding petitioner, in a counterclaim, contested the latter declaration and his counterclaim was denied.

With respect to the court order of November 17, 1942, since the order is only one for support and specifically decrees that the parties are not divorced, it is clearly not a divorce decree nor a written instrument incident thereto. Nor is it a decree of separate maintenance, as alleged, but merely a reformation, pursuant to stipulation of the parties, of the settlement agreement to which it refers:

16 T.C. 1485">*1489 ORDERED, ADJUDGED AND DECREED that the separation agreement between GEORGE J. FEINBERG and ANNA FEINBERG entered into on the 10th day of February, 1940 be reformed in accordance with the stipulation of settlement * * *

We find, therefore, on all the facts that the payments1951 U.S. Tax Ct. LEXIS 142">*151 of $ 3,900 each by petitioner during the taxable years 1942 and 1943 were not in discharge of a legal obligation which was imposed upon or incurred by petitioner under a decree of divorce or separate maintenance or under a written instrument incident to such decree within the meaning of section 22 (k) of the Code. It follows that the payments were not deductible by petitioner under section 23 (u) of the Code.

Decision will be entered for respondent.