An appropriate order will be issued.
VASQUEZ, Judge: On September 8, 2011, pursuant to
We adopt the findings of fact in our prior Memorandum Findings of Fact and Opinion, Moore I. For convenience and clarity, we repeat below the facts necessary for the disposition of this motion.
In 2006 petitioner made payments to his former spouse of $21,700.82 and deducted these amounts as alimony on his Form 1040, U.S. Individual Income Tax Return, for 2006. Respondent subsequently determined that petitioner's payments were not deductible as 2011 Tax Ct. Memo LEXIS 257">*258 alimony. The divorce decree is silent as to whether petitioner's maintenance obligation to his former spouse terminates on her death.
DiscussionReconsideration under
In Moore I we concluded that petitioner was not entitled to deduct payments he made to his former wife as alimony under
Respondent agreed that the requirements of
Petitioner argues that we should grant his motion for reconsideration because (1) this Court, when deciding whether alimony payments automatically terminate upon the death of the payee spouse under Indiana law, overlooked
In deciding whether petitioner's 2011 Tax Ct. Memo LEXIS 257">*261 maintenance obligation would terminate upon the death of his former spouse, the Court considered Deel and determined that it did not warrant discussion. Petitioner cited Deel for the proposition that under Indiana law, unless the terms of the divorce decree specify that the payments survive the death of the payee spouse, maintenance payments automatically terminate on the death of the payee spouse. After reviewing Deel we determined that it did not stand for the proposition for which petitioner cited it.
In Deel, the Indiana Court of Appeals decided whether the payments Mr. Deel made to his former wife were maintenance payments or part of a property settlement, not whether under Indiana law a maintenance obligation terminates on the death of the payee spouse.
To resolve the ambiguity, we consider various factors to determine whether the clause is one for maintenance or part of a property settlement.
The court of appeals concluded that for a number of reasons, the payments constituted spousal maintenance. Id. In evaluating the factors the court of appeals stated that "the sum and duration of the payments were uncertain because the decree does not include an obligation for Husband to continue payments if Wife died prior to attaining the age 2011 Tax Ct. Memo LEXIS 257">*263 of sixty-five." 3
In addition, petitioner questions 2011 Tax Ct. Memo LEXIS 257">*264 our decision to not discuss whether he satisfied his evidentiary obligation with respect to
Petitioner has failed to demonstrate unusual circumstances or substantial errors of fact or law. Accordingly, we will deny petitioner's motion for reconsideration.
To reflect the foregoing,
An appropriate order will be issued.
Footnotes
*. This opinion supplements our prior opinion, Moore v. Commissioner, T.C. Memo. 2011-200.↩
1. Unless otherwise indicated, all section references are to the Internal Revenue Code in effect for the year in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure.↩
2.
Sec. 71(b)(1) provides:SEC. 71(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—
(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.
3. The divorce decree provided that the payments terminated when wife reached 65.↩