duncan's divorce proceedings ordered him to make monthly payments to his former wife under the connecticut's sorry california supreme court case of in remarriage of gilmore under gilmore of course because mr duncan chose to d lay retirement his former wife could elect to receive immediate payments from him for the resulting impairment in her community property interest in the retirement benefits that's turned scored in this case held that mr dun reduce his gross income by the amount of those payments for his two thousand tax year now that year was a year during which mr duncan had not retired and as a result no distributions were made from the pension plan so the because if it's a property settlement and if a former spouse is just receiving something that was hers in the first place then the spouse who owns the would pay would be responsible for the tax burden on that property so for example if there had been a pension distribution of community property to the spouses each spouse would be responsible for the tax burden on what they owned on their community to the california supreme court to let them decide that question i wouldn't make a difference if we get i don't think that's necessary because i think the california law is clear that there is a real difference between community property and separate the government's free for i believe one hundred twenty four in that case what happened was very similar the husband was ordered to make monthly payments to the former wife for her interest in a ranch so it's the same sort of thing where  spouse had an ownership interest in the ranch he was ordered to make the payments to her in order to basically compensate her for her interest in this court held that the husband could not d payments because they were compensation for the former wife's interest in property so there's a real difference between somebody receiving community property that she in fact own and somebody who is receiving payments compensation for that property here there's no question that the wages that mr duncan used to make those payments were his separate property so yes i was just going to say that i mean there's no basis to convert mr duncan separate property into community property which is essentially what the tax court did the terms were basically engaged in a fiction a treated mr duncan as if he had received a distribution of community property from the pension and that all of that community property half of that was his wife's and forwarded over to her but that's absolutely not what happened you can't have the distribute she have a pension without having a distribution from a property such that in this case for example let's say you made five thousand dollars in wages you got four thousand dollars which we the california supreme court are going to say are community property so two thousand of it goes to her and two thousand of it stays in effect with him tax consequences to him don't much matter because he's got to pay taxes on all of it anyway where is the line drawn between how far the california supreme court can go in characterizing what that property is and where the federal interest  it in treatment for federal income tax purposes begins well state was determined ownership so for example california has decided that income earner assets acquired during the marriage are community property owned half by each so for example state law says that each spouse owns half of the pension that was earned during marriage but it's federal law that determines the tax consequences generally the t that or with the fed say wait a minute that's it it's up to us to determine the tax consequences you can't really dictate that wealth i don't know because that would create a clear conflict because the tax law explicitly taxes somebody on the wages that they heard so i mean that's an interesting question i don't know if the  shift to the person who's receiving the payments but you know fundamentally there's no basis under either the tax code or california law for mr duncan to have an exclusion for the portion of his right you know i think really it's not a question for the california supreme court because i think whether or not there's a distribution for a pension plan is sort of it's a cut and dry question is actually a