T.C. Memo. 1997-38
UNITED STATES TAX COURT
FELICIANO AND DEBORA RIBERA, Petitioners v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 22678-94. Filed January 22, 1997.
Feliciano and Debora Ribera, pro se.
Christian A. Speck, for respondent.
MEMORANDUM FINDINGS OF FACT AND OPINION
VASQUEZ, Judge: Respondent determined deficiencies in
petitioners' Federal income tax of $13,595 and $2,688 for the
1991 and 1992 tax years, respectively.
All section references are to the Internal Revenue Code in
effect for the years in issue, and all Rule references are to the
Tax Court Rules of Practice and Procedure. After concessions,
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the issues remaining are (1) whether petitioner1 properly
deducted $13,9682 as alimony in 1991; and (2) whether petitioner
substantiated that he paid $190 to his former wife in 1992 as her
share of his royalty payments.
FINDINGS OF FACT
Some of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
incorporated herein by this reference. Petitioners resided in
Tahoe Valley, California, at the time the petition was filed in
this case.
On December 11, 1989, the Superior Court of California,
Santa Clara County, entered judgment dissolving the marriage of
petitioner, Feliciano M. Ribera (a.k.a. Feliciano M. Rivera) and
his wife, Maria Elena Rivera (Maria). In order to collect her
spousal support, Maria garnished petitioner's wages.
During the divorce proceedings, the State court found that
petitioner attempted to and did, in fact, hide and dispose of
community assets. Due to petitioner's conduct, the court ordered
petitioner to pay Maria's attorney's fees.
In order to collect the awarded fees and costs, Maria's
attorneys, Peters, Peters & Ellingson (hereinafter Peters, et
al.), garnished petitioner's wages. Subsequently, Peters, et
1
Hereinafter, all references to petitioner refer to
Feliciano Ribera.
2
All dollar amounts are rounded to the nearest dollar.
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al., sought the forced sale of real property owned by petitioner.
To satisfy the awarded attorney's fees, Peters, et al., filed a
declaration for issuance of writ of execution. Under the writ of
execution, the sheriff levied petitioner's interest in real
property in California. Peters, et al., subsequently filed an
application to enforce the orders and judgment awarding Maria
attorney's fees and costs. Pursuant to the levy and an order for
sale of dwelling, the sheriff's office sold petitioner's real
property and issued a check payable to Peters, et al., in the
amount of $37,484, dated June 28, 1991. The payments made
pursuant to this garnishment and the forced sale of petitioner's
property, less the amount petitioner has conceded, form the basis
for the current dispute.
Petitioner's marital dissolution judgment also required
petitioner to pay Maria one-half of his royalty payments received
from books he had written.
OPINION
Section 215(a) permits a deduction for the payment of
alimony during a taxable year. Section 215(b) defines alimony as
alimony which is includable in the gross income of the recipient
under section 71. Section 71(b)(1) defines alimony or separate
maintenance as any cash payment meeting the four criteria
provided in subparagraphs (A) through (D) of that section.
Accordingly, if any portion of the payments made by petitioner
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fails to meet any one of the four enumerated criteria, that
portion is not alimony and is thus not deductible by petitioner.
Neither of the parties argues that the requirements of
subparagraphs (A), (B), and (C) of section 71(b)(1) have not been
satisfied. Their disagreement focuses on the provisions of
subparagraph (D).3 Respondent claims that the amount in issue
was paid for petitioner's former wife's attorney's fees and
costs, and the liability to make such payments would not have
terminated upon petitioner's former wife's death. Respondent
therefore argues that the requirements of subparagraph (D) are
not satisfied and that the payments are accordingly not alimony.
Petitioner argues that the payments in issue were alimony but
offers no legal authority in support of his position.4 Based on
various statements made at trial, as well as petitioner's trial
3
Sec. 71(b)(1)(D) provides:
(b) ALIMONY OR SEPARATE MAINTENANCE PAYMENTS
DEFINED.--For purposes of this section--
(1) IN GENERAL.--The term "alimony or separate
maintenance payment" means any payment in cash if--
* * * * * * *
(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.
4
Petitioner filed a one-page statement of facts and
accompanying correspondence as his brief. No legal authorities
were presented, nor did petitioner address the merits of his
case.
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memorandum, petitioner apparently believes that the payments in
question were alimony because they represent payments for
arrearages in alimony or, alternatively, even if they represent
payments for attorney's fees, they are still in the nature of
spousal support and therefore deductible alimony.
Petitioner emphasizes that the order which garnished his
wages to pay the attorney's fees was titled “Earnings Withholding
Order For Support” and, therefore, contends that the payments
made to the attorneys were for support and are properly
considered alimony. It is well settled that the labels which the
parties or a State court attach to payments are not conclusive.
Yoakum v. Commissioner, 82 T.C. 128, 140 (1984). Rather, the
determination rests upon all of the surrounding facts and
circumstances. Id. Petitioner bears the burden of proof. Rule
142(a). Petitioner offered no evidence showing that the
attorney's fee obligation would end at his former wife's death.
We found petitioner's statements that the payments were for
arrearages in alimony and/or spousal support not to be credible.
Respondent's witness, Maria's divorce attorney, was, on the other
hand, credible in her explanation that the payments in issue were
for attorney's fees and costs awarded by the State court that
would not have terminated upon Maria's death. There is
sufficient evidence in the record, based on all of the facts and
circumstances, that the payments in issue were for attorney's
fees, and the liability to make such payments would not have
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terminated upon Maria's death. The payments do not therefore
satisfy the requirement of section 71(b)(1)(D). Respondent's
determination as to this issue is therefore sustained.
Petitioner offered no evidence that he made the $190 payment
which he claimed as a deduction, and, as stated previously, no
legal argument of any type was made on brief. Petitioner bears
the burden of proof. Rule 142(a). Respondent's determination
must be sustained as petitioner has failed to satisfy his burden
of proof on this issue.
To reflect the foregoing,
Decision will be
entered under Rule 155.