*1092 Amount received by a divorced woman as alimony or in lieu of alimony is not taxable income.
*41 The Commissioner determined deficiencies in petitioner's income taxes for the years 1913 to 1930, inclusive, amounting in the aggregate to $52,393.42, and aggregate penalties of $13,930.22 for the same period, by charging her with tax on amounts received from a trust fund established by a divorced husband, and with penalties for failure to file income tax returns. She assails the determination for all years, except those prior to 1916, of which the Board is without jurisdiction. The facts are all stipulated, and a witness was called to testify to the English law.
FINDINGS OF FACT.
The petitioner, a citizen of Hungary, was married in the United States in 1899 to Gerald P. Fitzgerald, an Irishman, and three sons were born of the marriage. After marital difficulties, she instituted proceedings against her husband which resulted in a decree of divorce and separation from bed and board and mutual cohabitation, rendered*1093 by the High Court of Justice of Ireland on December 5, 1906. At that time the court was without authority to decree an absolute divorce, and the husband remained under an obligation to support the wife.
On December 6, 1906, petitioner, her husband, and three trustees, consisting of the husband and two residents of Uniontown, Pennsylvania, entered into a contract whereby the husband agreed "to pay to the wife by quarterly payments alimony at the rate of three thousand pounds per annum", until August 12, 1907, or to the date of dissolution of their marriage by Act of Parliament if passed earlier, "the wife undertaking to make no application in the meantime to the Court for alimony." The husband then undertook to pay the trustees, after the anticipated dissolution, so much of his share of the annual profits of the Fayette Coke Co. and the Shamrock Supply Co. of New Salem, Pennsylvania, "as will yield an annuity of fifteen thousand dollars per annum for three years and after three years * * * an annuity of twenty thousand dollars per annum," the trustees being charged with the collection and payment of these *42 amounts to petitioner. The husband agreed further that "for the*1094 consideration aforesaid" the trustees should collect one-third of the remainder of his share of the profits from the Pennsylvania companies and invest it until they so accumulated a fund of $300,000; on February 1, 1908, and each succeeding year of petitioner's life, they were to pay one-half of the income of this fund to her and to pay or accumulate the other half for the benefit of the three children or, in their discretion, to pay the entire income to petitioner until the oldest surviving child should reach the age of twenty-one, the children being thereafter entitled to their shares. Other sections made provision for distribution in case of a beneficiary's death.
7. In consideration of the benefits to be obtained by the foregoing provisions in her favor the wife hereby agrees that in the event of the Act of Divorce becoming law that any right she may have to dower, alimony or otherwise under the laws of any of the United States of America or of Great Britain or Ireland shall be extinguished by and merged in this Agreement, the execution whereof by her shall be deemed and taken to be a waiver by her of all such rights to all intents and purposes as affecting the property of*1095 the husband.
On July 26, 1907, the bond of matrimony between petitioner and her husband was "wholly dissolved annulled vacated and made void to all intents constructions and purposes whatsoever" by an act of Parliament. Under the law of England a covenant concerning alimony made between divorced parties is not binding on a court and in case of the wife's subsequent petition for alimony the court may use its unfettered discretion in making an alimony award and fixing the amount thereof regardless of a prior contract. The wife's remarriage does not ipso facto terminate her right to alimony.
Pursuant to a bill in equity filed by petitioner and a trustee under the trust of December 6, 1906, the Court of Common Pleas of Fayette County, Pennsylvania, entered a decree on March 15, 1911, ordering the divorced husband to pay certain arrears in his obligations and substituting another trustee in his place. This decree was modified by a second, rendered March 5, 1915, requiring him to secure a fund of $400,000 by assignment to the trustees of his interest in a sinking fund of the Fayette Coke Co. and by mortgage on certain realty, to serve as a guaranty of the performance of his*1096 obligations under the agreement. On the same date he executed the assignment and mortgage.
In each of the years 1916 to 1930, inclusive, the petitioner received from the trustees $20,000 from the "Alimony Fund" and the following amounts from the "Children's Fund": 1916, $1,528.11; 1917, $4,096.04; 1918, $3,194.32; 1919, $6,532.27; 1920, $7,792.87; 1921 to 1930, inclusive, $8,000 annually. She filed no income tax return for any of these years. She resided in England from 1906 to 1917, and *43 has since resided in the United States. On November 1, 1911, she was married to Prince Victor of Thurn and Taxis, who died in January 1918. Her divorced husband is still living.
OPINION.
STERNHAGEN: The Commissioner, in determining the deficiency, said simply that the amounts received by petitioner from the funds established by her divorced husband "are taxable to you." At the hearing, his counsel stated that he questioned whether the amounts received could be regarded as by way of alimony, and that the question is whether the law of England provided for alimony.
The evidence leaves it indisputable that alimony is a recognized right and obligation under the law of England, *1097 that the agreement of 1906 was made in contemplation of divorce and to provide for alimony, that this provision was not subject to change or termination by remarriage, that in 1911 and again in 1915, both before and after petitioner's remarriage, the Pennsylvania Court of Common Pleas lent its aid to the enforcement of the 1906 agreement, and that such agreement was the entire source of the petitioner's receipts. Since the trial, the Government has filed no brief, and no argument is made in the light of the evidence to support the deficiencies.
The question thus appears to be a repetition of a controversy long since decided, i.e., whether an amount received by a divorced woman as alimony or in lieu of alimony is taxable income. It is not. ; ; ; .
There is much more law on the question of the effect of an alimony or subsistence agreement or trust upon the tax of the husband; but there is no such issue here, and it would not be proper to deal with it. The wife alone is the present petitioner, *1098 and as to her the Commissioner incorrectly held the amounts received to be taxable income.
Judgment will be entered for the petitioner.