(dissenting).
I dissent. I would affirm the Tax Court.
The case hinges upon an interpretation of Section 22 (k) of the 1939 Code. The first sentence of that section reads as follows:
“(k) Alimony, etc., income. In the case of a wife who is divorced or legally separated from her husband under a decree of divorce or of separate maintenance, periodic payments (whether or not made at regular intervals) received subsequent to 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 upon or incurred by such husband under such decree or under a written instrument incident to such divorce or separation shall be includible in the gross income of such wife, and such amounts received as are attributable to property so transferred shall not be includible in the gross income of such husband.” (Italics supplied.)
It- is stipulated that the payments here in question were received subsequent to the entry of a final decree of divorce. Thus, in the words of Section 22 (k), those payments were “ * * * received subsequent to such decree in discharge of * * a legal obligation which, because of the marital or family relationship, is imposed upon * * * such husband under such decree * * * ” By the express words of the statute the payments made by *723respondent here are not to be included in his gross income. To my mind that should settle the matter, for I do not find that the statute is ambiguous or that it needs judicial gloss to make its purport clear.
The majority, however, in reversing the Tax Court has seen fit to amend the statute to add to the phrase “ * * * received subsequent to such decree in discharge of a legal obligation under such decree * * * ” the further qualification “but only insofar as such payments are intended to satisfy support obligations arising subsequent to such decree.” If Congress had intended the test the majority has adopted it could have drawn the statute so as to express it.
But even assuming that the statute is ambiguous and that consideration of matters outside the statutory language is required in order to clarify its meaning, I can discover no justification for the majority’s holding. Surely the Tax Court’s interpretation is more in keeping with the principle of Section 22 (k) — that the tax burden should be placed upon the person who receives and enjoys the income. MacFadden v. C. I. R., 3 Cir., 1957, 250 F.2d 545, certiorari denied 356 U.S. 968, 78 S.Ct. 1007, 2 L.Ed.2d 1074. The statutory requirement that payments the recipient must include in reported income shall be payments made and received subsequent to a decree of divorce does not indicate an intent that the payments be made only for obligations which would have occurred subsequent to the date of the decree. Rather it indicates that there must be adequate proof of divorce before the husband’s deduction is allowed, just as “the term ‘written instrument incident to such divorce’ was designed * * * only to ensure adequate proof of the existence of the obligation when divorce has occurred * * * ” Lerner v. C. I. R., 2 Cir., 1952, 195 F.2d 296, 298. Customarily husband and wife can determine from the stipulation submitted by them the amount of alimony payments to be imposed by a divorce decree; and hence, under the Tax Court’s interpretation of Section 22 (k), there is no possibility for tax avoidance other than that which the section obviously permits.