1970 U.S. Tax Ct. LEXIS 68">*68
54 T.C. 1702">*1702 Respondent determined a deficiency in petitioner's income tax for the year 1966 in the amount of $ 964.13. Petitioner introduced no evidence regarding the amount of his charitable contributions and accordingly, is deemed no longer to contest respondent's determination with respect to this item. The only issue remaining for our decision is whether the payments made by petitioner to his former wife, Kathryn S. Healey, for the period February 14, 1966, to November 9, 1966, constitute alimony or separate maintenance, and therefore, whether1970 U.S. Tax Ct. LEXIS 68">*70 he is entitled to a deduction under
FINDING OF FACT
The stipulation of facts, together with exhibits attached thereto, is incorporated herein by reference.
Petitioner's legal residence at the date of the filing of the petition herein was Denver, Colo. For the year in question, petitioner filed his Federal income tax return (Form 1040) with the district director of internal revenue, Denver, Colo.
The petitioner and his former spouse, Kathryn S. Healey, were married on January 5, 1952. As a result of this marriage, they had three children, Mary Kathleen Healey, Colleen Ann Healey, and Joseph John Healey.
On February 14, 1966, Kathryn filed a complaint for separate maintenance, a motion for restraining order, and a motion for temporary support, alimony, court costs, and attorney's fees in the District Court of Douglas County, State of Colorado. On the same date, the District Court1970 U.S. Tax Ct. LEXIS 68">*71 of Douglas County granted Kathryn's motion for restraining order, but did not take any action on her complaint for separate 54 T.C. 1702">*1703 maintenance, or her motion for temporary support, alimony, court costs, and attorney's fees. The restraining order required petitioner to live apart from his wife and family and directed him not to encumber or dispose of any of the property which had been accumulated during the marriage.
Kathryn's attorney prepared a written separation and property-settlement agreement which, among other things, specified that petitioner was to pay $ 275 every 2 weeks to Kathryn for her support and that of their three children. This agreement was submitted to petitioner for approval and execution but he refused to execute the agreement because he wanted it to be modified in certain respects. Petitioner and Kathryn never executed this agreement because they could not agree on the specific terms to be included in such an agreement.
In answer to Kathryn's complaint for separate maintenance, on April 18, 1966, petitioner filed an answer and counterclaim in divorce. On September 15, 1966, all the actions previously referred to as being instituted in the District Court1970 U.S. Tax Ct. LEXIS 68">*72 of Douglas County, State of Colorado, were transferred to the District Court of Arapahoe County, State of Colorado, by agreement between petitioner and Kathryn.
On November 21, 1966,
The petitioner paid a total of $ 5,591 for the support of his wife and children during 1966, in the amounts shown and on the dates indicated, as follows:
| Date payment made | Amount |
| 3/ 7/66 | $ 275.00 |
| 3/21/66 | 275.00 |
| 4/ 4/66 | 275.00 |
| 4/18/66 | 275.00 |
| 5/ 3/66 | 164.75 |
| 5/16/66 | 275.00 |
| 5/31/66 | 266.25 |
| 6/13/66 | 275.00 |
| 7/ 1/66 | 275.00 |
| 7/12/66 | 275.00 |
| 7/26/66 | 275.00 |
| 8/ 9/66 | 260.00 |
| 8/23/66 | 275.00 |
| 9/ 6/66 | 275.00 |
| 9/20/66 | 275.00 |
| 10/ 4/66 | 200.00 |
| 10/18/66 | 200.00 |
| 11/ 2/66 | 200.00 |
| 11/15/66 | 250.00 |
| 11/28/66 | 250.00 |
| 12/14/66 | 250.00 |
| 12/27/66 | 250.00 |
| Total | 5,591.00 |
Of the total amount paid by petitioner, $ 1,000 was paid under the terms of the support order entered1970 U.S. Tax Ct. LEXIS 68">*73 by the District Court of Arapahoe County effective November 9, 1966. The balance was not paid by the petitioner pursuant to the specific terms of a court order.
54 T.C. 1702">*1704 On February 21, 1967, the District Court of Arapahoe County issued a decree of divorce. It granted Kathryn custody of the three children mentioned above. On May 9, 1967, the District Court of Arapahoe County entered its permanent order for alimony, child support, attorney's fees, court costs, and division of property.
In his Federal income tax return for the taxable year 1966, petitioner deducted $ 5,591 as separate maintenance payments. The respondent determined that since the periodic payments to Kathryn were not made as a result of a written separation agreement, they are not deductible as alimony.
OPINION
The question presented for decision is whether petitioner is entitled to a deduction under
(a) General Rule. -- In the case of a husband described in
(a) General Rule. -- (1) Decree of divorce or separate maintenance. -- If a wife is divorced or legally separated from her husband under a decree of divorce or of separate maintenance, the wife's gross income includes periodic payments (whether or not made at regular intervals) received after 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 on or incurred by the husband under the decree or under a written instrument incident to such divorce or separation. (2) Written separation agreement. -- If a wife is separated from her 1970 U.S. Tax Ct. LEXIS 68">*75 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 (or which are attributable to property transferred, in trust or otherwise, under such agreement and because of such relationship). This paragraph shall not apply if the husband and wife make a single return jointly. 54 T.C. 1702">*1705 (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. This paragraph shall not apply if the husband and wife make a single return jointly.
Petitioner contends that the restraining order was a legal separation and because he was still obligated under Colorado law (
Respondent contends that the payments in question were not made pursuant to a "decree of divorce" as that term is used in
Petitioner concedes that this restraining order was not a1970 U.S. Tax Ct. LEXIS 68">*77 decree of divorce and it did not direct him to make any payments to his wife. Further, he concedes that no written separation agreement was entered into by the parties.
The only remaining basis then, upon which this Court could hold in petitioner's favor, would be to equate the restraining order, coupled with the legal obligation to support his family imposed upon petitioner by Colorado law, with a decree of separate maintenance as defined in
Petitioner's reliance on the wording of the statute "a legal obligation which because of the marital or family relationship is imposed on or incurred by the husband" ignores the highly pertinent phrase which immediately follows and modifies the quoted portion of the statute. This phrase reads: "under the decree." When read in its entirety it is clear that in order to be deductible the statute requires 54 T.C. 1702">*1706 that the obligations to make the payments in question must have been imposed by the decree itself.
The cases cited by petitioner in support of his petition herein are all distinguishable on their facts. Our attention has not been called to any case squarely on point on the issue involved herein. However, 1970 U.S. Tax Ct. LEXIS 68">*78 the regulations under
Section 1.71-1(b)(4) of the regulations provides that, "
In the report of the Committee on Ways and Means of the Revenue Bill of 1942, pertaining to the predecessor of
This section applies only where the legal obligation being discharged arises out of the family or marital relationship in recognition of the general obligation to support, which is made specific by the instrument or decree.
In
Section 22(k) [predecessor1970 U.S. Tax Ct. LEXIS 68">*79 of
The same language is applicable here.
In the case at bar petitioner had an obligation to support his wife and family which arose out of the marital relationship. However, as petitioner himself apparently recognizes, this legal obligation was imposed upon him under Colorado law and
For the reasons discussed above we hold that the payments made by petitioner subsequent to the issuance of the restraining order and prior to the issuance of the temporary support1970 U.S. Tax Ct. LEXIS 68">*80 order, are not deductible by petitioner as alimony under
1. All section references shall be to the Internal Revenue Code of 1954, as amended, unless specified otherwise.↩
