Klausman v. Klausman

368 S.E.2d 185, 186 Ga. App. 669, 1988 Ga. App. LEXIS 430

• Court: Court of Appeals of Georgia
• Decided: March 18, 1988
• Docket: 75746
• Status: Published

Opinions

Sognier, Judge.

Henry M. Klausman brought an action against his former wife, Patricia W. Klausman, seeking contribution of her portion of delinquent income taxes and penalties for the years 1980, 1981, and 1982. The debt to the Internal Revenue Service had been extinguished when the IRS seized Mr. Klausman’s 1985 estimated tax payments in satisfaction thereof. The trial court granted Patricia Klausman’s motion for summary judgment and denied that of Henry Klausman. Henry Klausman appeals.

The record reveals that appellant is an accountant who, while married to appellee, established a branch of the Universal Life Church as a vehicle to avoid taxes, and became himself an ordained minister in said church. Thereafter, he claimed substantial contributions to the church on the parties’ joint tax returns. In 1983 appellant was notified by the IRS that the deductions claimed for contributions to the Universal Life Church in 1980, 1981, and 1982 would be disallowed, and that penalties and interest would be imposed, and appellant protested the IRS decision. Divorce proceedings between the parties were initiated in 1983, and became final in March of 1984. The final decree incorporated an agreement which purported to settle all issues relating to the parties’ rights and obligations growing out of the marital relationship, and which was otherwise silent as to the delinquent tax liability. In December of 1984 the IRS formally disallowed the deductions; in April of 1985 it billed the parties for the arrearage and penalties totaling more than $33,000. In November of 1985 the IRS seized appellant’s estimated tax payments and applied them to the bill for delinquent taxes, thus satisfying the debt, and appellant brought this action for contribution.

Appellant contends the trial court erred by granting appellee’s motion for summary judgment and denying his own motion, because the evidence established a common liability and thus he, rather than appellee, was entitled to judgment as a matter of law. We do not agree.

“ ‘Contribution can not properly be granted as affirmative relief unless the party claiming such relief has been compelled to discharge a liability for which he and the other party were equally bound.’ [Cit.]” (Emphasis supplied.) Nannis Terpening &c. v. Mark Smith Constr. Co., 171 Ga. App. 111, 115 (1) (318 SE2d 89) (1984). Appellant argues such common liability has been established because 26 USCA § 6013 (d) (3) provides as a general proposition that both husband and wife are jointly and severally liable for any tax due on joint returns. However, certain other provisions of the federal tax code limit or remove that common liability from an “innocent spouse,” provided the applicant for such treatment meets the requirements of those provisions. 26 USCA § 6013 (e).

It is uncontroverted that appellee has appealed the IRS assessment as to her, claiming that she meets the requirements for “innocent spouse” treatment, and that she has pursued that claim through appropriate channels and sought a ruling to that effect. Such a ruling would remove her liability for the tax deficiency, thereby removing as well appellant’s right to contribution. To date, there has been no final determination on appellee’s appeal of the IRS assessment as to her. However, the record shows, and the trial court found, that appellee’s claim is not without merit, and that her chances of being found an “innocent spouse” are at least reasonable. It is undisputed that, unlike appellant, she had little income, no experience in financial or accounting matters, and did not prepare the returns in question. Further, she had refused any involvement with the “church” created by appellant which was the recipient of the disallowed charitable contributions. We note additionally that the IRS has placed appellee’s case on “general continuance,” but has issued notice that no penalties will be sought against appellee. In view of the foregoing, it can hardly be said that appellee’s liability has been “established.” Rather, the time is not yet ripe for adjudicating the matter before us, as there has been no final determination as to whether appellee has any liability, and the trial court’s ruling that this suit is premature is correct.

This case was heard on motions for summary judgment, and a motion for summary judgment cannot be granted on the ground that the action is premature, which is a matter in abatement. Ogden Equip. Co. v. Talmadge Farms, 232 Ga. 614 (208 SE2d 459) (1974). However, the evidence does support a dismissal on the basis of prematurity, since appellant has failed to satisfy an essential precondition for bringing an action for contribution. OCGA § 23-2-71. No purpose is served by allowing appellant to proceed in the state forum with this action toward a judgment entitling him to contribution from appellee, when a ruling in the previously initiated federal proceeding that appellee was entitled to “innocent spouse” treatment would render it meaningless. Accordingly, the nomenclature of the motion notwithstanding, we affirm with direction that the trial court’s order be amended to show that said dismissal was not on the merits of appellant’s claim. See Carlson v. Hall County Planning Comm., 233 Ga. 286, 289 (2) (210 SE2d 815) (1974).

Judgment affirmed with direction.

Birdsong, C. J., Been, P. J., Banke, P. J., Carley, Pope, and Benham, JJ., concur. McMurray, P. J., and Beasley, J., dissent.