OPINION
Tannenwald, Judge:Respondent determined deficiencies in petitioners’ Federal income taxes as follows:
Tamable year Deficiency Taxable year Deficiency
1963 _ . $189. 73 1965 _ - $171.00
1964 _ - 180.13 1966 _ . 171.00
In view of a concession by respondent, the only issue for decision is whether petitioners are entitled to deductions under section 215 1 for certain payments made in 1965 and 1966.
All facts have been stipulated and are so found.
At the time they filed the petition herein, petitioners’ legal residence was in Waverly, N.Y. They filed joint income tax returns for 1963 through 1966 with the district director of internal revenue at Buffalo, N.Y. Petitioner Josephine A. Carle is a petitioner herein only because she filed joint returns with petitioner Vernon K. Carle. Subsequent references to petitioner shall be deemed to refer only to Vernon K. Carle.
On September 1, 1936, the petitioner married Beatrice Carle (hereinafter Beatrice) at Elmira, N.Y. In August of 1958, petitioner and Beatrice separated. On April 17, 1959, the Superior Court of the State of California, having personal jurisdiction of both parties, granted Beatrice an interlocutory decree of divorce (hereinafter referred to as the California decree). The decree awarded custody of the minor daughter to Beatrice. It further provided:
3. That Defendant Vernon K. Carle shall pay to Plaintiff Beatrice Carle, at such place or places as she may from time to time in writing designate, the sum of one hundred dollars ($100.00) on or about the first day of each month beginning with April of 1959 and continuing until the further order of the Court, said sums to be for her own support; and,
4. That Defendant shall similarly, and at such place or places and at said intervals, also and additionally pay to Plaintiff as for the support of the minor child, Louise Ann Carle, the sum of One Hundred Dollars ($100.00) monthly beginning with the month of April, 1959 and continuing so long as said child remains an unmarried minor or until the further order of this Court.
Thereafter, Beatrice and the daughter moved to New Jersey, where they now reside, and petitioner moved to New York, where he now resides. On August 24, 1960, because of petitioner’s arrearages under the California decree, Beatrice started a proceeding against petitioner in the Juvenile and Domestic Relations Court, Passaic County, N.J. After a hearing in New Jersey, the proceeding was continued in the Children’s Court of the State of New York, Tioga County,2 pursuant to New Jersey’s Uniform Reciprocal Support Act, N.J. Rev. Stat. sec. 2A :4-30 (1952), and New York’s Uniform Support of Dependents Law, N.Y. Dom. Rel. Law secs. 30-43 (McKinney 1964). On March 30, 1961, the Children’s Court, with knowledge of and against the background of, the California decree, ordered :
that the respondent, Vernon Keith Garle pay the sum of seventy-five dollars ($75.00) in trust to John E. Carr, Director of Probation, Tioga County, for the support and maintenance of his wife, the petitioner, Beatrice Carle, and Louise Ann Carle, his minor child, on or about the 10th day of each and every month hereafter, and commencing on the 10th day of April, 1961, to be disbursed through the regular channels of the Tioga County Department of Probation, subject to the further order of the Court.
On March. 9, 1962, a final judgment of divorce was rendered in California, which, confirmed terms for alimony and child support contained in the interlocutory decree.3
On May 12,1965, Beatrice instituted a suit in the Supreme Court of the State of New York for arrearages under the California decree, alleging that no payments had ever been made under the decree. Beatrice’s complaint asked, inter al'ia:
that the amount of accrued alimony and support unpaid and due under the aforesaid judgment be adjudged and determined and that the Plaintiff have judgement for such amount; that defendant be adjudged to pay Plaintiff for alimony and support in the sum of $200.00 per month as required by the said judgment of the said Superior Court of San Mateo, State of California, that defendant be required to give reasonable 'security in such manner and within such a time as this court thinks proper; * ⅜ *
On July 27, 1965, the Supreme Court of New York rendered a decision upon Beatrice’s motion for summary judgment, stating in part that:
The defendant alleges that all payments under the decree were paid through March 30, 1961 either, we gather, by direct payment or the receipt by the plaintiff of defendant’s share in community property, or both, and the sum of $75.00 per month thereafter pursuant to an order of the Tioga County Children’s Court. While the defendant’s claim that the Children’s Court order modified the California divorce decree is without merit, he should receive credit for payments made thereunder. Morse v. Morse, 3 Misc 2d 163.
There is here no question of fact other than the amount unpaid under the California divorce decree and this will be determined by this Court or by a Referee, whichever the parties prefer, or as directed by this Court in the event no agreement can be reached. Subject to such determination the motion for summary judgment is granted.
During tbe taxable years herein involved, petitioner paid the $75 per month as required by the Children’s Court order4 and claimed the amounts paid as “alimony” or “family support” deductions on his Federal income tax returns.
A husband may deduct payments in the nature of alimony under section 215 5 only if his wife takes them into income under section 71.° Tlie dispute in this caso involves the characterization of the $75 payments made by petitioner after July 27, 1965. Petitioner claims that the payments were in the nature of alimony and therefore deductible. Respondent claims that they constituted child support within the meaning of section 71(b) and hence are not deductible by petitioner.
The California decree specifically designated $100 as child support and $100 as support of Beatrice. The order of the Hew York Children’s Court provided that $75 per month should be paid for the support of Beatrice and the child without any designation as to how that amount should be allocated.
The difficulty herein stems from the fact that petitioner apparently was obligated to pay under both decrees. Petitioner contends that, since the payments in question were made under the order of the Children’s Court, i.e., the second decree, no amount was “fixed” for child support and therefore the rule of Commissioner v. Lester, 366 U.S. 299 (1961), applies. He points to the fact that res]iondent has conceded that payments made prior to the decision of the New York Supreme Court on July 27, 1965, were proper deductions and contends that that decision effected no change in the situation. We disagree.
The test under Lester is whether the amounts paid for child support were specifically designated as such. Clearly, they were by the California decree. Whatever the impact of the order of the Children’s Court may have been, we think that the situation was significantly affected by the decision of the Hew York Supreme Court. To be sure, that decision did not alter or modify the order of the Children’s Court. Nevertheless, it did specifically state that the $75 payments under the Children’s Court order were to be credited against the pay-merits required to be made under tlio California decree. We recognize that the New York Supreme Court was dealing only with prior payments and that technically its decision did not apply to payments subsequently made. Nevertheless, we think that the thrust of the decision is clear and that this constitutes a sufficient designation to make the California decree the operative instrument as far as this case is concerned. Compare Sara Nicoll Gotthelf, 48 T.C. 690 (1967), affd. 407 F. 2d 491 (C.A. 2, 1969), certiorari denied 396 U.S. 828 (1969). Such being the case, the payments must be applied to child support. Sec. 71 (b) ; Martha J. Blyth, 21 T.C. 275 (1953).
Neither Chester L. Tinsman, 47 T.C. 560 (1967), nor Ines Siegert, 51 T.C. 611 (1969), requires a contrary conclusion. In both of these cases, there were two decrees — the first decree specifying a single sum for alimony and child support and the second specifying a single sum for child support alone. In Siegert we held that the second decree did accomplish the required specific designation, and in Tinsman we held that it did not. We do not consider that these cases establish a mechanical test of determining under which decree the payments were made.
It is one thing to say that the ambiguity of a prior decree is not necessarily cured by a specific designation in a subsequent decree. It is another to say that the specific designation in the prior decree is necessarily destroyed by the ambiguity of the subsequent decree. This is particularly true where, as is the case herein, there is a third instrument which can be considered as curing the ambiguity.7 By way of contrast, we note that in neither Tinsman nor Siegert was there any comparable tie-in between the payments under the second decree and the obligations under the first decree.8
In view of our conclusion, we express no opinion on the further questions whether (1) for any period after the divorce became final, the Children’s Court order should be considered a decree of support within the meaning of section 71(a) (3) or could be effective under New York law9 with respect to provision for support of Beatrice, and (2) the extent to which the rationale of Borax’ Estate v. Commissioner, 349 F. 2d 666 (C.A. 2, 1965), reversing 40 T.C. 1001 (1963), consequently applies if, indeed, it applies at all.
In order to reflect respondent’s concessions,
Decision will be entered wader Rule 50.
Reviewed by the Court.
All references, unless otherwise noted, are to the Internal Revenue Code of 1954.
These courts were abolished effective Sept. 1, 1962. N.Y. Const., art. 6, secs. 35a and 37. Pending proceedings were transferred to the new family courts of the respective counties. N.Y. Const., art. 6, sec. 35h.
“Petitioner married his present wife prior to this date, but respondent makes no contention regarding the validity of that marriage.
This is how we interpret the stipulation of the parties that the payments were made “under the Children’s Court order.” The petitioner continued to pay only the $75 per month after the decision of the New York Supreme Court on July 27, 1965. Respondent has stipulated that the payments prior to that date are deductible.
“ SEC. 215. ALIMONY, ETC., PAYMENTS.
(a) General Rule. — In the case of a husband described in section 71, there shall be allowed as a deduction amounts includible under section 71 in the gross income of his wife, payment of which is made within the husband’s taxable year. No deduction shall be allowed under the preceding sentence with respect to any payment if, by reason of section 71(d) or 682, the amount thereof is not includible in the husband’s gross income.
We note also that, In Tinsman, the amount for child support specified In the second decree ivas exactly the same as that specified for both alimony and child support in the first decree. At the very least, this fact contributes materially to a finding of a lack of specific designation.
Indeed, in Siegert we carefully pointed out that the two decrees were completely independent and that the payment under the Virginia support order did not discharge the husband’s obligation under the earlier Florida decree. See 51 T.C. at 621.
See N.Y. Judiciary Law (part 1) sec. 461 et seg. (McKinney 1968), and the annotations thereunder; compare Chester L. Tinsman, 47 T.C. at 563.
SEC. 71. ALIMONY AND SEPARATE MAINTENANCE PAYMENTS.
(a) General Rule.—
(1) Decree of divorce or separate maintenance. — 1£ a wife is divorced or legally separated from lier husband under a decree of divorce or of separate maintenance, the wife’s gross income includes periodic payments (whether or not made at regular intervals) received after such decree in discharge of (or attributable to property transferred, in trust or otherwise, in discharge of) a legal obligation which, because of the marital or family relationship, is imposed on or incurred by the husband under the decree or under a written instrument incident to such divorce or separation.
* * * * * * it
(3) Decree for support. — If a wife is separated from her husband, the wife’s gross income includes periodic payments (whether or not made at regular intervals) received by her after the date of the enactment of this title from her husband under a decree entered after March 1, 1954, requiring the husband to make the payments for her support or maintenance. This paragraph shall not apply if the husband and wife make a single return jointly.
(b) Payments to Support Minor Children. — Subsection (a) shall not apply to that part of any payment which the terms of the decree, instrument, or agreement fix, in terms of an amount of money or a part of the payment, as a sum which is payable for the support of minor children of the husband. Eor purposes of the preceding sentence, if any payment is less than the amount specified in the decree, instrument, or agreement, then so much of such payment as does not exceeii the sum payable for support shall be considered a payment for such support.