T.C. Summary Opinion 2011-114



                     UNITED STATES TAX COURT



                 DAVID K. BROWN, Petitioner v.
          COMMISSIONER OF INTERNAL REVENUE, Respondent



     Docket No. 2157-10S.                Filed September 28, 2011.



     David K. Brown, pro se.

     Brandon S. Cline, for respondent.



     CARLUZZO, Special Trial Judge:   This case was heard pursuant

to the provisions of section 7463.1   Pursuant to section 7463(b),

the decision to be entered is not reviewable by any other court,




     1
      Unless otherwise indicated, section references are to the
Internal Revenue Code of 1986, as amended, in effect for the
relevant period. Rule references are to the Tax Court Rules of
Practice and Procedure.
                                 -2-

and this opinion shall not be treated as precedent for any other

case.

     In a notice of deficiency dated October 19, 2009, respondent

determined a $4,884 deficiency in and a $743.73 section

6651(a)(1) addition to tax with respect to petitioner’s 2007

Federal income tax.    After concessions,2 the issue for decision

is whether petitioner is entitled to an alimony deduction in

excess of the amount now allowed by respondent.    The resolution

of the issue depends upon whether petitioner may treat as alimony

certain amounts paid as attorney’s fees to the attorney for his

former spouse.

                             Background

     All of the facts have been stipulated, see Rule 122, and

they are so found.    At the time the petition was filed,

petitioner resided in Florida.

     Petitioner and Orly Brown (petitioner’s former spouse) were

married on October 27, 1985; their marriage was dissolved on

June 9, 2008, by the final judgment of dissolution of marriage

issued by the Circuit Court of the Seventeenth Judicial Circuit

for Broward County, Florida (divorce decree).    As best can be

determined from the record, the divorce proceedings were less



     2
      According to the stipulation of settled issues, respondent
now agrees that petitioner is entitled to an alimony deduction in
an amount not less than $22,087.81; respondent further concedes
the imposition of the sec. 6651(a) addition to tax.
                                -3-

than cordial.   The divorce decree addresses items routinely found

in such documents, such as spousal support, custody and

visitation rights with respect to the minor children of

petitioner and his former spouse, and the division of property.

As relevant here, the divorce decree specifically states that

each party was responsible for his or her own costs, including

attorney’s fees, and that such costs were not to be shared.

     During the course of the divorce proceedings, and before the

issuance of the divorce decree, petitioner’s former spouse

applied to the appropriate court for attorney’s fees and costs.

As a result, after a finding that petitioner had been the cause

of extensive and unnecessary delay, the State court ordered him

to pay $67,639.32 to the attorney who had represented his

former spouse during the divorce proceedings (for convenience,

separation instrument).   The amount awarded was intended to cover

attorney’s fees actually incurred and attorney’s fees reasonably

estimated to be incurred in the future in connection with the

divorce proceedings.3   Accordingly, during 2007 petitioner paid

$15,086.23 to the attorney for his former spouse (disputed

payment).

     Petitioner’s 2007 Federal income tax return was timely

filed.   As relevant here, the adjusted gross income reported on



     3
      At the time of the award, attorney’s fees actually incurred
by petitioner’s former spouse exceeded $30,000.
                                -4-

that return takes into account a $27,290 deduction for alimony

paid to petitioner’s former spouse.   The record does not disclose

how that deduction was computed, but it is clear that no amounts

attributable to the disputed payment are included in it.

     The notice of deficiency disallowed the alimony deduction.

As noted, respondent now agrees that petitioner is entitled to an

alimony deduction in an amount not less than $22,087.81.   The

record does not disclose how that amount was computed either, but

it is also clear that no amounts attributable to the disputed

payment are included in the amount now allowed by respondent.

                            Discussion

     According to petitioner, the disputed payment is allowable

as an alimony deduction.   Respondent disagrees, and for the

following reasons, so do we.

     As has been observed in countless opinions, deductions are a

matter of legislative grace, and the taxpayer bears the burden of

proving his entitlement to claimed deductions.   Rule 142(a);

INDOPCO, Inc. v. Commissioner, 

, 84 (1992); New

Colonial Ice Co. v. Helvering, 

, 440 (1934).

     Section 215(a) permits a deduction for the payment of

alimony during the taxable year.   For section 215 purposes, the

definition of “alimony” is actually found in section 71(b)(1),

which provides:
                                  -5-

          (1) In general.--The term “alimony or separate
     maintenance payment” means 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 includible 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

               (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.

     If a payment made to a spouse or former spouse fails to meet

any of these four enumerated criteria, that payment does not fit

within the definition of alimony and is not allowable as a

deduction under section 215.

     Taking the parties’ lead, and assuming without finding that

the disputed payment satisfies the requirements set forth in

section 71(b)(1)(A), (B), and (C), we turn our attention to

petitioner’s obligation to have made the disputed payment after

the death of his former spouse.

     In order to deduct a payment as alimony, the payor must have

no liability to make the payment, or continue to make payments,
                                -6-

after the payee’s death.   Sec. 71(b)(1)(D); Johanson v.

Commissioner, 

, 976-977 (9th Cir. 2008), affg. T.C.

Memo. 2006-105; Kean v. Commissioner, 

, 191 (3d Cir.

2005), affg. T.C. Memo. 2003-163.     This requirement may be

satisfied either by the express terms of the relevant divorce or

separation instrument or by operation of State law.     Commissioner

v. Estate of Bosch, 

, 465 (1967); Cunningham v.

Commissioner, T.C. Memo. 1994-474.

     According to petitioner, his obligation to have made the

disputed payment would have terminated upon the death of his

former spouse.   According to respondent, petitioner’s obligation

to make the disputed payment was fixed by the separation

instrument regardless of whether his former spouse died before

the payment was made.   Because the separation instrument does not

state whether petitioner’s obligation to make the disputed

payment would have terminated upon the death of his former

spouse, we examine State law, in this case Florida law, to

resolve the dispute between the parties on the point.     See

Johanson v. Commissioner, supra at 977.

     Our review of Florida law leads us to conclude that

petitioner’s obligation to have made the disputed payment would

not have terminated upon the death of his former spouse.

See Fla. Stat. Ann. sec. 57.105(2) (West 2006 & Supp. 2011) (fees

and costs may be imposed upon a party to civil litigation who has
                               -7-

caused unreasonable delay);4 Clark v. Clark, 

,

478-479 (Fla. Dist. Ct. App. 2001) (upholding an award of

attorney’s fees applied for before the death of the payee

spouse); Hirsch v. Hirsch, 

(Fla. Dist. Ct. App.

1988) (upholding an award of attorney’s fees even though the

payee spouse died before the issuance of the divorce decree).5

     In support of his position, petitioner relies upon

Rosenhouse v. Ever, 

(Fla. Dist. Ct. App. 1963).

In Rosenhouse, the court held that a party’s right to seek

attorney’s fees terminated upon the death of that party.    To the

extent that Rosenhouse has not been effectively overruled by the

line of cases cited above, we find it to be distinguishable and

decline to apply its reasoning here.   See, e.g., Clark v. Clark,

supra at 478; MacLeod v. Hoff, 

, 1251-1252 (Fla.

Dist. Ct. App. 1995).

     Because petitioner has failed to establish that under

Florida law his obligation to have made the disputed payment

would have terminated upon the death of his former spouse, the

payment does not fit within the definition of alimony for


     4
      The court order obligating petitioner to make the disputed
payment clearly reflects that court’s view that petitioner
“unreasonably [delayed]” the divorce proceedings.
     5
      Relying upon Hirsch v. Hirsch, 

(Fla. Dist.
Ct. App. 1988), in Berry v. Commissioner, T.C. Memo. 2000-373,
affd. 

(10th Cir. 2002), we found that the
obligation of one spouse to pay the attorney’s fees of the other
did not terminate upon the death of the payee spouse.
                                 -8-

purposes of sections 71 and 215.    It follows that petitioner’s

allowable alimony deduction for the year in issue is limited to

the amount now allowed by respondent.

     To reflect the foregoing,


                                       Decision will be entered

                                 under Rule 155.