T.C. Summary Opinion 2007-112



                      UNITED STATES TAX COURT



             JACK DANIEL CHAVEZ, SR., Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket Nos. 23941-04S, 2374-06S.      Filed July 2, 2007.



     Paul S. Braun, for petitioner.

     Kathleen Schlenzig, for respondent.



     GOLDBERG, Special Trial Judge:     These cases were

consolidated and heard pursuant to the provisions of section 7463

of the Internal Revenue Code in effect at the time the petitions

were filed.   Pursuant to section 7463(b), the decisions to be

entered are not reviewable by any other court, and this opinion

shall not be treated as precedent for any other case.      Unless

otherwise indicated, subsequent section references are to the
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Internal Revenue Code in effect for the years in issue, and all

Rule references are to the Tax Court Rules of Practice and

Procedure.

     Respondent determined deficiencies in petitioner’s Federal

income taxes for the years 2002 and 2003 in the amounts of $4,563

and $4,237, respectively.   The sole issue for decision is whether

petitioner is entitled to an alimony deduction in the amount of

$16,937 for each of the taxable years in issue.

                            Background

     The stipulation of facts and the attached exhibits are

incorporated herein by reference.   At the time the petitions were

filed, petitioner resided in Lansing, Illinois.

     Petitioner and his former spouse, Debra Chavez (Ms. Chavez)

were married on September 4, 1971, in Cook County, Illinois.

Three children were born of the marriage.   On June 7, 2001, a

Judgment of Dissolution of Marriage (Judgment) was entered in the

Circuit Court of Cook County, Illinois, Domestic Relations

Division (circuit court).   At the time that the Judgment was

entered, one of the three children was a minor.

     In paragraph 1.2, Article I, of the Judgment, the circuit

court ordered petitioner to make monthly payments described as

“unallocated child support.”   Paragraph 1.3, Article I, states

that the payments would cease on October 1, 2003, the 19th

birthday of petitioner’s youngest daughter.   The Judgment is

silent otherwise as to whether the payments or any part thereof,
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were to be deductible as alimony by petitioner and includable as

gross income by Ms. Chavez.   The Judgment itself is also silent

as to whether petitioner’s obligation to make the payments would

survive Ms. Chavez’s death.

     In addition to the aforementioned Judgment, petitioner

submitted, and the Court received into evidence, over

respondent’s objection, three additional orders of the circuit

court.    The first, entered on June 18, 2003, required petitioner

to pay $705.74 to Ms. Chavez every 2 weeks as “unallocated child

support and maintenance” until a rehearing scheduled for August

20, 2003.   In this order, the circuit court judge designated that

$604 of the $705.74 be characterized as “maintenance.”   Although

the record is silent on the matter, we assume that either this

rehearing did not occur or petitioner continued to make these

payments of his own accord through the end of 2003.

     The second order, entered on July 23, 2004, required that

petitioner pay $757.52 to Ms. Chavez monthly for a period of 12

months.   Finally, a third order, entered on August 30, 2005,

required that petitioner pay $600 per month to Ms. Chavez through

October 5, 2005.   In his petition, petitioner maintains that

these orders show that at least a portion, if not all, of the

unallocated child support paid by petitioner to Ms. Chavez in

2003, 2004, and 2005, was for maintenance and accordingly, should

entitle him to alimony deductions in taxable years 2002 and 2003.
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                            Discussion

     The Commissioner’s determinations are presumed correct, and

taxpayers generally bear the burden of proving otherwise.     Welch

v. Helvering, 

, 115 (1933).   Petitioner did not argue

that section 7491 is applicable in these cases, nor did he

establish that the burden of proof should shift to respondent.

Moreover, the issue involved in these cases, alimony, is a legal

one to be decided on the record without regard to the burden of

proof.   Petitioner, therefore, bears the burden of proving that

respondent’s determinations in the notices of deficiency are

erroneous.   See Rule 142(a); Welch v. Helvering, supra at 115.

     An individual may deduct from his or her gross income the

payments he or she made during a taxable year for alimony or

separate maintenance.   Sec. 215(a).

     Section 71(b)(1) defines “alimony or separate maintenance

payment” as any payment in cash if:

          (A) such payment is received by (or on behalf of)
     a spouse under a divorce or separation instrument,

          (B) the divorce or separation instrument does not
     designate such payment as a payment which is not
     includable in gross income under this section and not
     allowable as a deduction under section 215,

          (C) in the case of an individual legally separated
     from his spouse under a decree of divorce or of
     separate maintenance, the payee spouse and the payor
     spouse are not members of the same household at the
     time such payment is made, and
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          (D) there is no liability to make any such payment
     for any period after the death of the payee spouse and
     there is no liability to make any payment (in cash or
     property) as a substitute for such payments after the
     death of the payee spouse.

     The test under section 71(b)(1) is conjunctive; a payment is

deductible as alimony only if all four requirements of section

71(b)(1) are present.   See Jaffe v. Commissioner, T.C. Memo.

1999-196.   Moreover, any payment which is payable for the support

of children of the payor spouse is neither includable in income

under section 71 nor deductible under section 215.   Section

71(c)(2) provides that if any amount specified in the divorce or

separation instrument will be reduced on the happening of a

contingency relating to a child, such as attaining a specified

age, the amount of the reduction will be treated as child

support.

     In this case, because the monthly payment prescribed in the

Judgment is for “unallocated child support” it is clear that

these payments were for child support only.   The Judgment, in

fact, ends these payments upon the youngest child’s 19th

birthday. In short, all of these payments were child support,

and petitioner is not entitled to any deduction for the payments

pursuant to section 71(c).

     Moreover, we are unconvinced by petitioner’s argument that

the intent of the parties is not reflected in the Judgment

because the term “unallocated child support” is oxymoronic and
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accordingly, void for vagueness.   We cannot think of any reason

why the payments would have been characterized as child support

in the Judgment if they were not intended to be for the support

of the minor child.

     Finally, we consider payments made by petitioner to Ms.

Chavez in taxable year 2003.   Specifically, we consider the terms

of the order dated June 18, 2003, which required petitioner to

pay $705.74 every 2 weeks to Ms. Chavez, and whereby $604 of that

amount was designated as “maintenance” through August 20, 2003.

Petitioner contends that he should be entitled to a deduction for

all of the payments that he made pursuant to this order in 2003.

Respondent, in fact, conceded that petitioner is entitled to a

deduction in the amount of $3,926 for taxable year 2003, which

represents 6½ payments made by petitioner to Ms. Chavez under the

June 18, 2003, order.   Accordingly, we must now decide whether

petitioner is entitled to a deduction under section 71 for the

balance of payments that he made in that year pursuant to the

June 18, 2003, order.

     In this case, because the order specifically delineates that

$604 of the $705.74 payment be for “maintenance” and the

remainder, $101.74, be for “unallocated child support”, it is

clear to us that this portion of the payments was intended for

child support only.   In accordance with the aforementioned
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section 71(c), we sustain respondent with respect to the balance

of the payments made under the June 18, 2003, order.

     Accordingly, and based on the foregoing facts and

discussion, we hold that petitioner is not entitled to an alimony

deduction under section 71 for taxable year 2002 and is not

entitled to a deduction in 2003 for the balance of payments in

excess of “maintenance” made pursuant to the June 18, 2003,1

order.
                                          In docket No. 23941-04S,

                                      decision will be entered for

                                      respondent.   In docket No.

                                      2374-06S, decision will be

                                      entered under Rule 155.




     1
       As they are dated in 2004 and 2005, respectively, we will
not address the other orders previously discussed.