Prince v. Commissioner

66 T.C. 1058, 1976 U.S. Tax Ct. LEXIS 47
CourtUnited States Tax Court
DecidedSeptember 22, 1976
DocketDocket No. 6338-74
StatusPublished
Cited by17 cases

This text of 66 T.C. 1058 (Prince v. Commissioner) is published on Counsel Stack Legal Research, covering United States Tax Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Prince v. Commissioner, 66 T.C. 1058, 1976 U.S. Tax Ct. LEXIS 47 (tax 1976).

Opinion

OPINION

Drennen, Judge:

Respondent determined a deficiency in petitioner’s income tax for the year 1971 in the amount of $1,169.67. On brief, respondent concedes one issue leaving for decision the sole question of whether certain payments received by petitioner during 1971 were periodic payments of alimony, taxable to her under section 71,1.R.C. 1954.1

All of the facts in this case have been stipulated and are summarized below. The stipulation of facts together with exhibits attached thereto are incorporated herein by this reference.

Betty C. Prince, petitioner, resided in Mission Viejo, Calif., at the time of filing the petition herein. Petitioner timely filed her 1971 individual income tax return.

In 1964, petitioner instituted an action for divorce against her then husband, Floyd J. Prince (hereinafter husband or former husband), in the Superior Court of the State of California for the County of Los Angeles. Petitioner’s husband filed an answer to said complaint and additionally filed a cross-complaint seeking a divorce from petitioner.

On October 29,1965, the action for divorce was called for trial before a judge without a jury. On that same day, the parties entered into an oral agreement as to the terms of the divorce. At trial, said agreement was offered into evidence as a joint stipulation and recited into the record by petitioner’s counsel. In pertinent part the agreement provided as follows:

In lieu of alimony the husband will pay to the wife the fixed sum of $77,440.00, payable regardless of the death or remarriage of either of the parties, and regardless of their other income, said payment to be made at the rate of $640.00 per month for 121 months, of which amount the wife shall allocate $250.00 per month as child support at $125.00 for each child until each child or either child shall die, marry, become emancipated, or attain the age of 21 years. At the happening of such event the obligation to so allocate shall cease. The husband shall and will pay all and any income taxes and discharge any income tax liabilities accruing to the wife by virtue of those payments made by any taxing authority, and the husband shall further provide and pay for the accounting services for preparing and filing any income tax returns for the wife.
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The wife waives any and all right to alimony and accepts the lump sum payment of $77,440.00, over the term as herein provided, in place and instead of alimony or support. * * *

Additional provisions of the stipulated agreement included such matters as the ownership of certain properties and the payment of medical and educational expenses of the parties’ children.

The court accepted the parties’ stipulated agreement and directed that the husband should continue3 to enjoy reasonable visitation rights to the children and instructed petitioner’s counsel-to incorporate the stipulation into an “attorney order.” The husband then withdrew his answer to the divorce complaint and his cross-complaint, and the proceeding was heard as a default. The court granted petitioner’s divorce and instructed counsel for petitioner to prepare the interlocutory judgment of divorce incorporating the terms of the above-described stipulation.

A minute order summarizing the above proceedings was prepared by the clerk of the court on October 29, 1965. It included the statement “A stipulation is recited into the record by counsel for plaintiff; said stipulation is ordered prepared in writing and filed.” The judgment was prepared by petitioner’s counsel and approved by her husband’s counsel on or about November 22,1965, filed with the Superior Court on November 29, 1965, and entered into the judgment book on November 30, 1965.4 The pertinent parts of the judgment are referred to in footnotes 2 and 5.

Subsequently, on June 22, 1966, the interlocutory judgment was modified by striking certain language on pages 1 and 3 of the interlocutory judgment at the request of the former husband, in order to conform the terms of the judgment with the stipulated agreement of October 29,1965.

On or about November 1, 1965, petitioner received her first payment of $320 called for under the agreement and interlocutory judgment.5 During 1971 petitioner received $7,040 from her former husband pursuant to the agreement and interlocutory judgment but did not report any part of said sum as taxable income on her 1971 income tax return.6

The payments called for by the stipulated agreement, incorporated in the interlocutory judgment, had not been the subject of any written separation agreement between petitioner and her husband, nor the subject of a court decree, order, or judgment, prior to October 29,1965.

At all times relevant hereto, section 664 of the California Code of Civil Procedure, applicable to the action for divorce described herein, provided in pertinent part as follows:

If the trial in a superior * * * court has been had by the court [without a jury] judgment must be entered by the clerk, in conformity to the decision of the court, immediately upon the filing of such decision; * * *. In no case is a judgment effectual for any purpose until entered.

Respondent determined that the payments received by petitioner during 1971 were periodic alimony payments under sections 71(a)(1) and (c)(2), and accordingly determined the deficiency at issue herein.

Section 71(a)(1)7 requires a divorced or legally separated wife to include in gross income periodic payments received from her husband after the decree of divorce or separate maintenance pursuant to a legal obligation which, because of the marital relationship, is imposed on or incurred by the husband under a decree or written instrument incident to divorce or separation. Section 71(c)(1)8 provides that installment payments on a lump-sum obligation specified in the decree or written instrument shall not be treated as periodic payments for purposes of subsection (a). However, section 71(c)(2)9 provides that installment payments are to be treated as periodic payments of alimony, to a limited extent, if under the divorce decree or written instrument such payments are to be made over a period ending more than 10 years from the date of the decree or written instrument.

The stipulated agreement with which we are concerned provided that petitioner’s former husband was to pay a principal sum of $77,440 by semimonthly installment payments of $320 over a period of 121 months. Thus the sole question we must decide is whether the payments received by petitioner come within the ambit of section 71(c)(2).

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Prince v. Commissioner
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Cite This Page — Counsel Stack

Bluebook (online)
66 T.C. 1058, 1976 U.S. Tax Ct. LEXIS 47, Counsel Stack Legal Research, https://law.counselstack.com/opinion/prince-v-commissioner-tax-1976.