T.C. Summary Opinion 2011-45
UNITED STATES TAX COURT
TIMOTHY OWEN MICEK, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 13679-09S. Filed April 6, 2011.
Timothy Owen Micek, pro se.
Nick G. Nilan, for respondent.
HAINES, Judge: This case was heard pursuant to the
provisions of section 7463 of the Internal Revenue Code in effect
when the petition was filed.1 Pursuant to section 7463(b), the
decision to be entered is not reviewable by any other court, and
1
Unless otherwise indicated, all section references are to
the Internal Revenue Code of 1986, as amended, and Rule
references are to the Tax Court Rules of Practice and Procedure.
Amounts are rounded to the nearest dollar.
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this opinion shall not be treated as precedent for any other
case.
Respondent determined deficiencies in petitioner’s Federal
income taxes and additions to tax as follows:
Addition to Tax
Year Deficiency Sec. 6651(a)(1)
2000 $12,224 $2,926
2001 12,073 1,660
2002 11,921 1,509
2003 2,764
The determined deficiencies were the result of the denial of
deductions for alimony paid that were claimed on petitioner’s tax
returns for the years at issue. We must decide whether
petitioner is entitled to the alimony deductions under section
215(a).
The parties’ stipulation of facts and the attached exhibits
are incorporated herein by this reference. Petitioner resided in
Washington when he filed this petition.
Petitioner and Karen Micek (Ms. Micek) were married on March
2, 1968, and had two children during their marriage. Petitioner
and Ms. Micek separated in 1997, at which time petitioner resided
in New Jersey and Ms. Micek resided in Pennsylvania.
In 1999 petitioner and Ms. Micek orally agreed that
petitioner would help support Ms. Micek by paying her $1,250
every 2 weeks. To memorialize this agreement, on November 10,
1999, petitioner signed a spousal support affidavit, stating that
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he promised to pay Ms. Micek $1,250 biweekly via direct deposit.
A notary public of the State of New Jersey notarized the spousal
support affidavit. Throughout the years at issue, petitioner
made payments to Ms. Micek pursuant to the spousal support
affidavit.
While petitioner was making payments, he was diagnosed with
multiple sclerosis and was forced to stop working. As a result,
in 2003 petitioner stopped making the required payments. On
April 21, 2003, petitioner’s attorney received a letter from Ms.
Micek’s attorney inquiring why petitioner had terminated the
“alimony/expense payments”.
Petitioner filed an action for divorce in the Superior Court
of New Jersey, Bergen County Family Division (the superior
court). On December 15, 2003, the Superior Court entered a
judgment of divorce. On January 27, 2004, the superior court
entered an amended final judgment of divorce. Neither judgment
incorporated the terms of the spousal support affidavit, and both
petitioner and Ms. Micek waived any right to payment of support
or alimony.
Petitioner timely filed his Forms 1040, U.S. Individual
Income Tax Return, for the years at issue. On February 26, 2009,
respondent issued a notice of deficiency disallowing petitioner’s
deductions for alimony paid. Petitioner timely filed his
petition with this Court on June 5, 2009.
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Discussion
Section 215(a) provides that an individual is allowed as a
deduction the amount equal to the alimony or separate maintenance
payments made during such individual’s taxable year. Alimony or
separate maintenance payment means any alimony or separate
maintenance payment (as defined in section 71(b)) which is
includable in the gross income of the recipient under section 71.
Sec. 215(b). Alimony or separate maintenance payment is defined
as any payment in cash that satisfies the four requirements
listed under section 71(b)(1). The first such requirement is
that the payment be received by or on behalf of a spouse under a
divorce or separation instrument.2 Sec. 71(b)(1)(A).
Section 71(b)(2) defines a divorce or separation instrument
as a decree of divorce or a written instrument incident to such a
decree, a written separation agreement, or a decree requiring a
spouse to make payments for the support or maintenance of the
other spouse. A divorce or separation agreement must be made in
writing. Herring v. Commissioner, 66 T.C. 308, 311 (1976);
2
In addition to requiring that payments be received by or on
behalf of a spouse under a divorce or separation instrument, sec.
71(b)(1) generally requires that: (1) The divorce or separation
instrument not designate a payment as one that is not includable
in gross income under sec. 71 and not allowable as a deduction
under sec. 215; (2) the payee spouse and the payor spouse not be
members of the same household at the time the payments are made;
and (3) there be no liability to make payments for any period
after the death of the payee spouse. Respondent does not dispute
that these requirements have been met. Further, respondent does
not dispute the amounts of the payments made.
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Leventhal v. Commissioner, T.C. Memo. 2000-92; Ellis v.
Commissioner, T.C. Memo. 1990-456. A payment made pursuant to an
oral agreement is not a payment made pursuant to a divorce or
separation instrument unless there is some type of written
instrument memorializing the agreement. Herring v. Commissioner,
supra; Osterbauer v. Commissioner, T.C. Memo. 1982-266.
Writings that do not represent a meeting of the minds of
the parties do not constitute a written separation agreement
within the meaning of section 71. Azenaro v. Commissioner, T.C.
Memo. 1989-224. The writing requirement does not, however,
specify the medium that may be used nor the form the writing must
take. Leventhal v. Commissioner, supra; Ellis v. Commissioner,
supra; Osterbauer v. Commissioner, supra. Further, there is no
requirement that the writing be signed by both husband and wife.
Jefferson v. Commissioner, 13 T.C. 1092, 1097-1098 (1949).
Petitioner bears the burden of proving respondent’s
determinations are incorrect. See Rule 142(a).
The issue before us is whether the spousal support affidavit
qualifies as a written separation instrument as defined by
section 71(b)(2). The spousal support affidavit is a written
instrument, signed by petitioner, promising to pay Ms. Micek
$1,250 every 2 weeks. As discussed above, a separation
instrument does not require a specific medium or form and does
not have to be signed by both husband and wife. Further, even
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though Ms. Micek did not sign the spousal support affidavit,
petitioner testified that he reached an oral agreement with Ms.
Micek with respect to support payments during their separation.
This meeting of the minds not only is memorialized by the spousal
support affidavit, but also is supported by the letter from Ms.
Micek’s attorney received by petitioner’s attorney on April 21,
2003, describing the payments she had been receiving from
petitioner as alimony payments. Accordingly, the spousal support
affidavit qualifies as a written separation instrument as defined
by section 71(b)(2), and petitioner is entitled to his claimed
alimony deductions for the years at issue.
In reaching these holdings, the Court has considered all
arguments made and, to the extent not mentioned, concludes that
they are moot, irrelevant, or without merit.
To reflect the foregoing,
Decision will be entered
for petitioner.