T.C. Memo. 1998-147

UNITED STATES TAX COURT

CATHERINE H. POOLE, f.k.a. CATHERINE H. DAMES, Petitioner v

.

COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 4492-97. Filed April 22, 1998.

Marilyn K. Summitt

, Jeffrey B. Kahn , and Joseph M.

Goldstein , for petitioner.

Alison W. Lehr , for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

JAC OBS, J udge : By two separate notices of deficiency,

respondent determined the following deficiencies in petitioner's

Federal income taxes:-2-

1 The Deficit Reduction Act of 1984, Pub. L. 98-369, sec.

422, 98 Stat. 494, 795, extensively changed the alimony rules

effective for divorce decrees executed after Dec. 31, 1984. This

case involves sec. 71(a)(1) prior to its revision. Year Deficiency

1989 $16,263

1990 15,814

1991 15,994

1992 13,469

1993 7,455

Following a concession by petitioner, the issue for decision

is whether payments received by petitioner during the years in

issue from her former husband pursuant to a divorce decree were

alimony or a property settlement distribution. If the payments are

determined to be alimony, then they are taxable to petitioner; if

they are determined to be in the nature of a property settlement,

then they are nontaxable. For the reasons set forth herein, we

find that the payments are in the nature of alimony.

All section references are to the Internal Revenue Code. 1 All

Rule references are to the Tax Court Rules of Practice and

Procedure.

FINDINGS OF FACT

S ome of the facts have been stipulated and are found

accordingly. The stipulation of facts and the attached exhibits

are incorporated herein by this reference.

At the time she filed her petition, petitioner resided in

Ponte Vedra, Florida.-3-

2 Attached to the Final Judgment of Dissolution of

Marriage (the divorce decree) was a Stipulation (dissolution

stipulation) between petitioner and Dr. Ibach (entered into on

May 25, 1983), which was adopted and incorporated by reference

into the divorce decree. A substantial portion of the divorce

decree mirrors provisions of the dissolution stipulation. Background

Petitioner, known as Catherine H. Poole at the time of trial,

w as married to Dr. John R. Ibach, Jr. from March 24, 1959, until

May 27, 1983. At the start of their marriage, petitioner worked as

a registered nurse, supporting her husband, who was completing his

residency following medical sc h ool. Dr. Ibach became a

cardiovascular surgeon.

After petitioner gave birth to her first child in 1961, she no

longer worked outside the home. Petitioner and Dr. Ibach

subsequently had four more children. Although petitioner primarily

stayed home to raise the children, she also assisted her husband in

his office.

Petitioner's Divorce From Dr. Ibach

On May 27, 1983, petitioner and Dr. Ibach were divorced by the

Circuit Court in and for Duval County, Florida, in a Final Judgment

of Dissolution of Marriage (the divorce decree). 2 Petitioner and

Dr. Ibach submitted separate financial affid avits to the Court,

each dated May 27, 1983: Dr. Ibach reported the current value of

his and petitioner's assets to be $943,750; petitioner reported the-4-

3 The discrepancy in amounts arises primarily from Dr.

Ibach's reporting total liabilities of $406,000 and petitioner's

reporting total liabilities of $281,000. value of her and Dr. Ibach's net assets to be $1,114,300. 3 Thus,

the value of petitioner's and Dr. Ibach's net assets at the date of

their divorce was approximately $1 million.

The divorce decree states in pertinent part:

7. As settlement of all claims the Wife

may have for temporary and permanent alimony,

Husband shall pay to Wife the lump sum of

$500, 000.00, with interest at 8% per annum on

the unpaid balance, payable as follows:

One hundred twenty (120) monthly

installments of $6,050.00, and one (1) monthly

installment of $3, 016.53. Said monthly

installm ents shall commence on the 1st day of

June, 1983, and continue on the first day of

each month thereafter for the payment period of

ten (10) years and one (1) month until paid in

full. The parties' intent is that this is lump

sum alimony, payable over a period of more than

ten (10) years as provided in section 71(c),

Internal Revenue Code

. Said sum is not subject

to modification, is payable re gardless of

Wife's death or remarriage, and shall be

deductible by Husband and taxable to Wife.

Provided, however, any of said lump sum

remaining unpaid at Wife's death shall be paid

into a trust created by Wife for the benefit of

the parties' children, with Husband and a

commercial bank of Wife's choice as cotrustees. It shall not be a claim against

Husband's estate in the event of his untimely

death, so l ong as he maintains the life

insurance provided for in paragraph 8 hereof,

and, if no t, shall be a claim against his

estate for the unpaid balance.

8. Husband shall, within sixty (60) days

from May 25, 1983, make Wife the sole

beneficiary of $500,000.00 in life insurance in-5-

order to i n sure his obligation for lump sum

alimony as set out herein. * * *

9. During their marriage, the parties

regarded themselves as a joint economic unit

or partnership sharing equally in the

ownership of appreciable portions of their

income and assets. Each participated

diligently in the enhancement of such income

and assets, contributing services, funds,

counsel, ideas and other assistance as

appropriate. They commingled their incomes

and applied themselves jointly to the

accomplishment of joint financial endeavors,

intending that the accumulated fruits of their

joint endeavors would be jointly owned

property (whether held in joint or individual

names). As and [sic] for an equal property

exchange, the parties shall make the following

transfers and payments in an effort to

equitably distribute their estate:

a) Husband shall pay direct to Wife

the sum of $50,000.00 cash on this date.

Thereafter, Husband shall pay to Wife the sum

of $50,000.00 one year from the dat e hereof,

and $50,000.00 two years from date hereof, all

without interest.

b) Husband shall convey to Wife, by

appropriate instrument, all of his right,

title and interest in the property located at

2636 Forest Point Court, Jacksonville, Florida

32217 * * *

c) Wife shall convey to Husband, by

appropriate instrument, all of her right,

title and interest in the marital home located

at 1362 Mandarin Road, Jacksonville, Florida

32223 * * *

d) Wife shall convey to Husband by

appropriate instrument, all of her right,

tit le and interest in and to the following

real property located at 2428 South Ponte

Vedra Boulevard, South Ponte Vedra, Florida *

* *

* * * * * * *-6-

10. Wife shall forthwith release and

tran sfer to the Husband any and all interest

she has or asserts to the Husband's Profit

Sharing and Pension Plan and further releases

any c laim to the John R. Ibach, Jr., M.D.,

P.A. and all of its assets.

11. Wife shall forthwith release and

transfer to the Husband any and all interest

she has or ass e rts to the Husband's Bache

account and Husband's savings account.

12. Wife shall forthwith release and

transfer to the Husband any and all interest

she has or asserts to the Husband's Tax

Shelter Investments.

* * * * * * *

17. Each party has agreed upon the

custody, support and visitation of the minor

children of the parties, and have also agreed

upon alimony and property settlement * * *

Petitioner also rec eived an automobile valued at $5,000, and Dr.

Ibach agreed to pay for the minor children's college and graduate

school education. Moreover, petitioner was relieved of any

liability she had for outstanding loans and joint debts, including

mortgage payments (with the exception of the mortgage on the Forest

P oint Court property) and responsibility for the children's

education.

Both petitioner and Dr. Ibach were represented by counsel

during the course of their divorce proceedings.

Between 1989 and 1993, Dr. Ibach made all the payments

required under t he terms of the divorce decree, including the-7-

4 The record is void as to Mr. Poole's first name. following principal and interest payments pursuant to Paragraph 7

of the divorce decree:

Year Total Paid Principal Interest

Pre-1989 $405,350.00 $228,517.01 $176,832.99

1989 72,600.00 52,789.10 19,810.90

1990 72,600.00 57,170.57 15,429.43

1991 72,600.00 61,915.70 10,684.30

1992 72,600.00 67,054.67 5,545.33

1993 33,266.53 32,552.95 713.58

Dr. Ibach also paid petitioner $150,000 pursuant to Paragraph

9a of the divorce decree.

Petitioner's Subsequent Marriages

On June 14, 1986, petitioner married Thomas Dames and became

known as Catherine H. Dames; this marriage subsequently ended in

divorce. In 1994, petitioner married Mr. Poole. 4

Petitioner's Federal Income Tax Returns

Petitioner filed joint Fede ral income tax returns with Mr.

Dames for 1989, 1990, and 1991. She filed Federal income tax

returns for 1992 and 1993 as a single taxpayer. Petitioner did not

include in income any of the principal Dr. Ibach paid her pursuant

to Paragraph 7 of the divorce decree on any of these returns; she

did, however, report on these returns the interest Dr. Ibach paid

her (with the exception of $713.58 in interest she received from

Dr. Ibach during 1993).-8-

On his 1989-93 income tax returns, Dr. Ibach deducted as

alimony the payments he made to petitioner pursuant to Paragraph 7

of the divorce decree.

Notices of Deficiency

Respondent sent a notice of deficiency to petitioner and her

former husband Mr. Dames for their 1989-91 tax years, determining

that petitioner improperly excluded from income $72,600 of alimony

payments for each taxable year. Accordingly, respondent increased

petitioner's taxable income for each year by $50,000. In the

second notice of deficiency sent to petitioner for her 1992 and

1993 tax years, respondent determined that she improperly excluded

from income $72,600 and $32,553 of alimony income for 1992 and

1993, respectively. Accordingly, respondent increased petitioner's

taxable income by $50,000 and $32,553, respectively, for 1992 and

1993. (These determinations were based upon respondent's view that

Dr. Ibach's payments to petitioner were taxable to her as alimony

up to 10 percent of the principal sum in each year.)

OPINION

The issue for decision is whether payments Dr. Ibach made to

petitioner pursuant to Paragraph 7 of the divorce decree during the

years in issue were alimony or a property settlement. Petitioner

contends that the paymen ts were nontaxable, lump-sum installment

payments of a property settlement, not in the nature of support.

Respondent disagrees.-9-

5 The limitation of sec. 71(c)(2) is that "the

installment payments shall be treated as periodic payments for

purposes of subsection (a), but (in the case of any one taxable

year of the wife) only to the extent of 10 percent of the

principal sum." Section 71(a)(1) sets forth the requirements for inclusion in

gross income of payments received pursuant to a decree of divorce

or separate maintenance. In sum, the payments are includable in

income if: (1) The payments are periodic; (2) the payments arise

because of a marital or family relationship; (3) the payments are

made pursuant to a decree of divorce or separate maintenance or

pursuant to a written instrument incident thereto; and (4) the

payor is under a legal obligation to make the payments.

With respect to the instant case, the requirements that

payments be made pursuant to a decree of divorce and that the payor

be under a legal obligation to make the payments are not in issue.

The divorce decree of the Duval County Circuit Court, which

incorporated the dissolution s tipulation of petitioner and Dr.

Ibach, satisfies these requirements. Nor is any problem presented

regarding the classification of the payments as pe riodic. Under

the general rules of section 71 (c)(1), installment payments

discha rging a principal sum obligation, as opposed to continuing

payments of an indefinit e duration, are not treated as periodic

payments. See also sec. 1.71-1(d)(1), Income Tax Regs. Section

71(c)(2) provides a statutory exception to the general rule of

section 71(c)(1). Subject to a percentage limitation, 5 section-10-

6 The principal sum of the payments petitioner received

was $500,000. Petitioner was therefore treated by respondent as

if she had received alimony of no more than $50,000, or 10

percent of the principal sum, during each of the years at issue. 71(c)(2) permits installment payments of a principal sum obligation

to be treated as periodic payments if the period for payments

extends mo re than 10 years beyond the date of the decree or

agreement. See W arnack v. Commissioner

, 71 T.C. 541 (1979). That

is the case he rein. 6 All other requirements of section 71(a)(1)

having been met, the decisive question is whether the payments were

made "because of the marital or family relationship". For the

reasons set forth below, we believe they were.

The statutory phrase "payments * * * [imposed] because of the

marital or family relationship" requires that the payments be in

the nature of support rather than property settlement. B eard v.

Commissioner

, 77 T.C. 1275, 1283 (1981); Martin v. Commissioner

, 73

T .C. 255, 265 n.2 (1979); sec. 1.71-1(b)(4), Income Tax Regs.

Payments that are part of a property settlement are capital in

nature and, therefore, are not deemed alimony subject to the

provisions of section 71. G ammill v. Commissioner

, 73 T.C. 921

(1980), affd. 710 F.2d 607 (10th Cir. 1982).

In evaluating whether a particular payment constitutes support

or property settlement, the labels assigned to the payments are not

determinative. Id. ; Hesse v. Commissioner

, 60 T.C. 685, 691 (1974),

affd. without published opinion 511 F.2d 1393 (3d Cir. 1975). In

deciding the character of an award in a divorce or separation-11-

decree, great weight is given, however, to the language and

structure of the decree. Griffith v. Commissioner

, 749 F.2d 11, 13

(6th Cir. 1984), affg. T.C. Memo. 1983-278. In addition, an

examination of surrounding facts and circumstances may be required.

Yoakum v. Commissioner

, 82 T.C. 128, 140 (1984); Gammill v.

Commissioner

, supra

.

This Court has frequently looked to State law in considering

whether payments between spouses constitute alimony or a property

settlement. See Y oakum v. Commissioner

, s upra at 136. Under

Florida law, following the termination of a marital relationship,

the financially advantaged spouse must provide support and

maintenance for the financially disadvantaged spouse. Fla. Stat.

Ann. sec. 61.08 (West 1985). Clearly, in this case, petitioner was

the financially disadvantaged spouse. Under Florida law, Dr. Ibach

was obligated to make payments to petitioner for her support. We

believe he did so pursuant to Paragraph 7.

Mo reover, there was an equitable property division between

petitioner and Dr. Ibach. Excluding the Paragraph 7 payments,

there was almost an equal division of their property. See E ckroade

v. Eckroade

, 570 So. 2d 1347 , 1349 (Fla. Dist. Ct. App. 1990).

However, although "State law defines property rights, Federal law

determines the tax consequences which attend these defined rights."

Wi lliams v. Commissioner , T.C. Memo. 1993-163 (citing S ampson v.

Commissioner

, 81 T .C. 614, 618 (1983), affd. without published

opinion 829 F.2d 39 (6th Cir. 1987)).-12-

This Court looks to the following factors which indicate that

payments are in the nature of a property settlement rather than a

support allowance: (1) The parties in their agreement (or the court

in its decree) intended the payments to effect a division of their

assets; (2) the recipient surrendered valuable property rights in

exchange for the payments; (3) the payments are fixed in amount and

not subject to contingencies, such as the remarriage or death of

the recipient; (4) the payments are secured; (5) the amount of the

payments plus the other property awarded to the recipi ent equals

approximately one-half of the property accumulated by the parties

during marriage; (6) the needs of the recipient were not taken into

consideration in determining the amount of the payments; and (7) a

separate provision for support was provided elsewhere in the decree

or agreement. B enedict v. Commissioner , 82 T.C. 573, 577-578

(1984); Beard v. Commissioner

, supra at 1284-1285. Failure to

satisfy one or more of the factors articulated herein may tend to

indicate that the payments in question are more in the nature of a

support allowance. See Beard v. Commissioner

, supra at 1285.

Applying the above factors, we conclude that Dr. Ibach's

payments to petitioner were in the nature of alimony. Our analysis

of the factors in reaching our conclusion is as follows.

With regard to the first factor, we believe the agreement was

intended to be a comprehensive and final settlement of all issues

regarding custody, support, visitation, alimony, and property

settlement between petitioner and Dr. Ibach. Paragraph 9 provides-13-

f or a division of the assets of petitioner and Dr. Ibach ("t h e

parties shall make the following transfers and payments in an

effort to equitably distribute their estate"). The only payments

at issue, however, are those pursuant to Paragraph 7.

As indicate d, great weight is given to the language and

structure of the decree. See G riffith v. Commissioner

, supra

. The

language of Paragraph 7 is explicit:

As settlement of all claims the Wife may have

for temporary and permanent alimony, Husband

shall pay to Wife the lump sum of $500,000 * *

* The parties' intent is that this is lump sum

alimony, payable o ver a period of more than

ten (10) years as provide d in section 71(c),

Internal Revenue Code

. Said sum * * * shall be

deductible by Husband and taxable to Wife.

This factor favors treating the payments as alimony.

With regard to the second factor, petitioner surren d ered

valuable prop erty rights valued at or greater than $500,000,

including: The Mandarin Road marital ho me; the South Ponte Vedra

beach house; Dr. Ibach's profit sharing and pension plan;

investments; and tax shelters. However, once she relinquished her

rights to these properties under Paragraphs 9c, 9d, 10, 11, and 12,

it does not appear that she had any f urther rights in tangible

prop erty to exchange for the Paragraph 7 payments. See

Schottenstein v. Commissioner

, 75 T.C. 451, 461 (1980). Thus, this

factor favors treating the payments as alimony.-14-

With regard to the third factor, the payments were fixed in

amount and were not subject to contingencies. This factor favors

treating the payments as part of a property settlement.

With regard to the fourth factor, although the total amount of

the installment payments was not secured, in the event of Dr.

Ibach's early death, petitioner was entitled either to have a claim

against his estate or receive proceeds of his life insurance. This

fa ctor favors treating the payments as part of a property

settlement.

With regard to the fifth factor, at the time petitioner and

Dr. Ibach divorced, their net assets were valued at approximately

$1 million. Petitioner received $150,000 pursuant to Paragraph 9a,

the Forest Point Court house valued at $173,000, and a car valued

at $5,000. Moreover, petitioner was relieved of loan obligations

totaling at least $120,000 as well as her obligations to educate

her children. The $448,000 total petitioner received is exclusive

of the Paragraph 7 payments. Thus, the amount of the Paragraph 7

payments plus the other property awarded to petitioner exceeded

one-half of the property a ccumulated by petitioner and Dr. Ibach

during their marriage. This factor favors treating the payments as

alimony.

With regard to the sixth factor, petitioner was financially

de pendent upon Dr. Ibach for 24 years. Petitioner and Dr. Ibach

submitte d separate financial affidavits to the divorce court.

There appears to be a correlation between the amount of monthly-15-

expenses petitioner incurred ($4,931.09) and the amount of monthly

payments Dr. Ibach made ($6,0 50). We believe that petitioner's

needs were considered when the amount of the Paragraph 7 payments

was determined. Thus, this factor favors treating the payments as

alimony.

Finally, with regard to the se venth factor, petitioner

concedes that no separate provision for support was provided

elsewhere in the divorce decree or dissolution stipulation. This

factor favors treating the payments as alimony.

Considering all the facts and circumstances and the above

Bear d factors, we give great weight to the clear language,

structure, and inten t of the divorce decree and accordingly

conclude that petitioner and Dr. Ibach intended to provide support

and alimony for petitioner in Paragraph 7 of the divorce decree.

Thus, we hold that the payments pursuant to Paragraph 7 are in the

nature of alimony and therefore taxable to petitioner to the extent

of 10 percent of the principal amount for each of the years in

issue.

To reflect the foregoing, and the concessions by petitioner,

Decision will be entered

for respondent

.