concurring: I concur with the results reached in the majority opinion, but I do not agree with the reasons for concluding that the payments made by the petitioner Taylor on the mortgage on the home, the garage, and the improvements are not periodic alimony payments within the meaning of sections 71 and 215.
As I understand the majority opinion, it concludes that the mortgage payments do not constitute alimony because of a failure of proof. However, I believe that we have before us a substantive question as to whether the provisions of sections 71 and 215 are to be applied when a former husband is required to make payments which benefit the former wife but when the amount of such benefit received by her during the taxable year cannot be definitely determined.
The predecessors of sections 71 and 215 were enacted to shift the tax burden on certain alimony payments from the husband to the wife.1 These provisions contemplate two methods by which alimony payments may be provided. If a husband arranges for the payment of alimony by transferring property to a trust or otherwise the income from which is payable to his wife, such income is taxable to her but not to him, and he is hot entitled to any deductions with respect to the payment of such income. If, on the other hand, the payments are made directly by the husband and received by the wife, such payments are includable in her income and deductible by him. In connection with this latter method, the legislative history reveals that Congress recognized that payments of alimony might be made indirectly for the benefit of a wife. The committee report states:
Section 23 (u), as well as section 22 (k), contemplates tlie treatment of alimony-payments as if tlie husband, and wife were on a cash receipts and disbursements basis, that is, the deduction is allowed the husband only for actual payment within his taxable year and the wife includes in her income for a taxable year under section 22 (k) only such periodic payments described therein as are actually received during such taxable year (including, of course, the constructive receipt or payment of amounts unqualifiedly subject to the demand of the wife or husband, as the case may be). [S. Rept. No. 1631, 77th Cong., 2d Sess., p. 569 (1942).]
Yet, it should be emphasized that a constructive payment of alimony was contemplated only when the wife had an unqualified right to demand the payment.
Payments which are made by a husband on behalf of his former wife in accordance with a divorce decree of settlement have been the cause of much litigation. Some of such payments have been held to constitute periodic payments of alimony within the meaning of section 71. For example, when a husband pays the premiums on an insurance policy which is completely owned by the wife, the payment of such premiums constitutes the constructive payment of alimony, Hyde v. Commissioner, 301 F. 2d 279 (C.A. 2, 1962). On the other hand, when the wife is not the complete owner of the policy, such payments have been held not to constitute alimony within the meaning of section 71, Seligmann v. Commissioner, 207 F. 2d 489 (C.A. 7, 1953); L. Mandel v. Commissioner, 229 F. 2d 382 (C.A. 7, 1956); Florence H. Griffith, 35 T.C. 882 (1961). Similarly, when a husband was required to continue the mortgage payments on a residence which the wife was allowed to occupy, and when she would share in the proceeds of the sale of the property if, and only if, she discontinued to occupy it as a residence, this Court held that the benefits which she derived from the mortgage payments were too tenuous to be treated as periodic payments of alimony, James Parks Bradley, 30 T.C. 701 (1958).
The majority opinion indicates that the rules of the life insurance cases do not provide an answer for this case. Although there are factual differences, I believe that the principle laid down in those cases is consistent with the legislative history, is sound, and should be applied to this case. In Seligmann, the likelihood that the wife would benefit from the payment of the life insurance premiums may be less than the likelihood that the petitioner Betty Jean will benefit from the mortgage payments in this case, but should the law turn upon such a difference in probabilities ? It seems to me that the holding of the life insurance cases is that the wife is not taxable unless the amount which she receives, or constructively receives, during the year can be definitely determined. This holding is consistent with the legislative history and is sound for it avoids taxing one party on a benefit which cannot be accurately and reliably measured and does not allow a deduction to another party when the amount of the payment is equally incapable of accurate measurement.
Without doubt, the petitioner Betty Jean derives some benefit as a result of the mortgage payments. So long as the petitioner Taylor continued to make tbe mortgage payments, she could continue to enjoy exclusive possession of the property. If she was personally liable on the mortgage, the requirement that he make the payments relieved her of her obligation to share in that liability. Making additional payments on the mortgages continued to build an equity in the propei’ty, but whether, and to what extent, she would share in that equity depended upon many circumstances. If the petitioner Taylor died before the occurrence of the circumstances calling for a sale of the property, she would receive the entire equity; if she died before such sale and before him, she would receive none of the property; but if both he and she lived until the sale, she would receive one-half of the property. In summary, she derived some benefit by reason of the mortgage payments mad© by him, but the amount of that benefit was very speculative.
In conclusion, I believe that the payments on the mortgages do not constitute periodic payments of alimony within the meaning of section 71 because the amount received by the petitioner Betty Jean as a result of such payments cannot be definitely determined.
H. Rept. No. 2333, 77th Cong., 1st Sess., p. 409 (1942).