t c memo united_states tax_court sharon f schilling petitioner v commissioner of internal revenue respondent docket no filed date timothy a tepe for petitioner edward lee walter for respondent memorandum opinion swift judge respondent determined a dollar_figure deficiency in petitioner’s federal_income_tax the issue for decision is how much of the dollar_figure in support payments petitioner received from her ex-husband in should be treated as taxable alimony income unless otherwise indicated all section references are to the internal_revenue_code in effect for the year in issue and all rule references are to the tax_court rules_of_practice and procedure background this case was submitted under rule the stipulated facts are so found at the time of filing the petition petitioner resided in north carolina in date after years of marriage and having five children together petitioner and her ex-husband separated during their marriage and at the time of their separation petitioner and her ex-husband apparently lived in ohio on date petitioner and her ex-husband entered into a separation agreement which specified that her ex-husband would pay her spousal support of dollar_figure per month for six years but which also specified incremental reductions in the dollar_figure spousal support payments as their three youngest children turned or left home for college during their 18th year whichever occurred later if the children did not go to college in their 18th year the separation agreement specified that the spousal support would be reduced in september of each child’s 18th year also on date petitioner and her ex-husband entered into a plan for shared parenting this plan was amended in date and provided-- father will pay to petitioner dollar_figure per month per child the deviation from guideline child_support is made as a result of the long term spousal support payments in the amount of dollar_figure per month described in the parties separation agreement which are calculated to provide support for the minor children as well as to petitioner on date petitioner and her ex-husband were divorced and a decree of divorce was entered by the court of common pleas butler county ohio attached to which was the date separation agreement the parties have stipulated that at the time of the divorce three of their five children were still minors and had not left home for college still living at home were child a born date child b born date and child c born date these children resided primarily with petitioner 1petitioner’s first two children are older and are not involved in any way in this case although the parties stipulated that child a was a minor at the time of petitioner’s divorce from her ex-husband the record indicates that child a had reached ohio’s age of majority of years see ohio rev code ann sec dollar_figure lexisnexis this distinction is immaterial for our purposes herein the specific relevant language of the date separation agreement provided as follows husband shall pay to petitioner spousal support in the amount of dollar_figure per month for a period of six years commencing on the first day of the first month after the date of separation the amount will be lessened by dollar_figure per month when child a turns or leaves the house for her first year of college whichever occurs later and by another dollar_figure per month when child b turns or leaves the house for his first year of college whichever occurs later the amount will be lessened by dollar_figure per month when child c turns or leaves the house for his first year of college whichever occurs later if for some reason any of the three aforementioned children do not go to college at age the amount will be lessened in september of the 18th year neither the separation agreement nor the divorce decree specified that petitioner’s ex-husband’s monthly support payments to her would terminate upon her death per the above separation agreement and divorce decree petitioner received spousal support payments on the first of each month as follows from date through date when child a left for college -- dollar_figure per month from date through date when child b turned -- dollar_figure per month from date through date when child c left for college -- dollar_figure per month from date through date when the six-year spousal support period ended --dollar_figure per month in petitioner received from her ex-husband monthly support payments of dollar_figure for eight months and dollar_figure for four months--a total of dollar_figure on her federal_income_tax return petitioner reported zero taxable alimony income on audit respondent treated as taxable alimony income the portion of the monthly support payments petitioner received each month that was not subject_to a reduction depending on the age or departure for college of any of her children--namely dollar_figure for respondent treated a total of dollar_figure or times dollar_figure as taxable alimony income to petitioner respondent treated the dollar_figure balance or dollar_figure minus dollar_figure as nontaxable child_support discussion generally cash payments a taxpayer receives from a spouse or ex-spouse under a separation agreement or a divorce decree are to be treated as taxable alimony income unless the payments are designated as nontaxable child_support or unless the payments are to continue after the death of the taxpayer see sec_71 b d c petitioner cites the commissioner’s temporary regulations see sec_1_71-1t q a-11 and temporary income_tax regs fed reg aug and asserts that the failure in the separation agreement or divorce decree to expressly state that the spousal support payments were to terminate on her death precludes the payments from being treated as taxable alimony petitioner overlooks the fact that in congress amended sec_71 to provide that alimony treatment is not limited to situations where a separation agreement or a divorce decree expressly states that the support payments are to terminate upon the death of the payee spouse see tax_reform_act_of_1986 pub_l_no sec b stat pincite see also 102_f3d_842 6th cir aff’g tcmemo_1995_183 irs notice_87_9 1987_ 1_cb_421 under the amendment payments received under a written agreement--such as the separation agreement between petitioner and her ex- husband--generally are also to be treated as taxable alimony for federal_income_tax purposes if under state law the payor’s obligation to make the payments terminates upon death of the payee spouse see rood v commissioner tcmemo_2012_122 noting that the court first looks for an unambiguous termination provision in the divorce decree and if there is no unambiguous termination provision then to whether the payments would terminate at the payee’s death by operation of state law here neither the separation agreement nor the divorce decree states clearly whether the spousal support payments are to terminate upon petitioner’s death however ohio law so provides and accordingly under the above general_rule the payments petitioner received from her ex-husband would be treated as alimony income see ohio rev code ann sec b lexisnexis see also hoover v commissioner f 3d pincite heffron v commissioner tcmemo_1995_253 aff’d without published opinion sub nom murley v commissioner 104_f3d_361 6th cir meeks v meeks wl ohio ct app feb sec_71 however goes on to provide that alimony treatment under sec_71 will not apply to the portion of a spousal support payment which under a separation agreement or divorce decree is payable for the support of children of the marriage further sec_71 provides that if the amount of spousal support to be paid under a separation agreement or divorce decree is to be reduced either on the happening of a contingency specified in the agreement relating to a child eg attaining a specified age or leaving for school see sec_71 or at a time that can clearly be associated with such a contingency see sec_71 an amount equal to the amount of the reduction will be treated as child_support sec_71 and b berry v commissioner tcmemo_2005_91 petitioner argues that the date termination of all further spousal support from her ex-husband constituted a fourth reduction in support relating to the children and therefore that the entire dollar_figure she received in constituted nontaxable child_support respondent argues that the date termination of all further spousal support was not a reduction clearly associated with a contingency relating to petitioner’s children we agree with respondent sec_71 does not define the term clearly associated with but the commissioner’s temporary regulations explain two situations that are to be presumed to be clearly associated with a contingency relating to a child as follows q-18 when will a payment be treated as to be reduced at a time which can clearly be associated with the happening of a contingency relating to a child of the payor a-18 there are two situations described below in which payments which would otherwise be treated as as alimony or separate_maintenance payments will be presumed under the temporary regulations to be reduced at a time clearly associated with the happening of a contingency relating to a child of the payor in all other situations reductions in payments will not be treated as clearly associated with the happening of a contingency relating to a child of the payor the first situation referred to above is where the payments are to be reduced not more than months before or after the date the child is to attain the age of or local age of majority in ohio the second situation is where the payments are to be reduced on two or more occasions which occur not more than one year before or after a different child of the payor spouse attains a certain age between the ages of and inclusive the certain age referred to in the preceding sentence must be the same for each such child but need not be a whole number of years the presumption in the two situations described above that payments are to be reduced at a time clearly associated with the happening of a contingency relating to a child of the payor may be rebutted either by the service or by taxpayers by showing that the time at which the payments are to be reduced was determined independently of any contingencies relating to the children of the payor the presumption in the first situation will be rebutted conclusively if the reduction is a complete cessation of alimony or separate_maintenance payments during the sixth post-separation_year sec_1_71-1t q a-18 temporary income_tax regs fed reg date emphasis supplied each of the first three reductions in the spousal support payments petitioner received from her ex-husband was made because one of the three youngest children either reached or left for college and as explained respondent has recognized those events as contingencies relating to the three children under sec_72 the date termination after six years of payments of all further support payments to petitioner occurred within six months of child c’ sec_21st birthday but the presumption applicable to the first situation described in the temporary regulations that support payments would be treated as related to a contingency relating to a child under sec_72 is conclusively rebutted here because of the rule stated in the last quoted sentence of the temporary regulations--namely a complete cessation of support payments during the sixth postseparation year does not qualify as a contingency relating to a child under the commissioner’s temporary regulations no conclusive rebuttal rule appears to apply to negate the presumption applicable to the second situation described in the temporary regulations however as indicated above the second situation involves multiple reductions in payments where each reduction occurs within a specified time in relation to a different child of the taxpayer thus to be treated as child_support under the second situation described in the temporary regulations each of the four reductions in support payments made in this case would have to have been associated with a different child of petitioner ie petitioner would have to have had four children whose specified birthdays occurred within the time window of the second situation petitioner had three children whose birthdays appear to fall within that window but not a fourth different child therefore the fourth or date reduction or termination of support payments does not qualify under the second situation described in the temporary regulations and no presumption of child_support treatment applies thereto we reject petitioner’s efforts to classify under the temporary regulations the date termination of spousal support as a fourth reduction clearly associated with a contingency relating to a child on date a complete cessation of support payments occurred and on the evidence before us that cessation has not been clearly associated with a contingency relating to a child finally the amended shared parenting plan between petitioner and her ex- husband provided that her ex-husband would pay her child_support of dollar_figure per 2petitioner argues the application of the so-called taint test under the commissioner’s temporary regulations--described in some detail in the bna separation and divorce tax management portfolio--supports the applicability of sec_71 to the fourth reduction in spousal support at issue herein see cindy lynn woffard divorce and separation 515-2d tax mgmt bna at a-18- a-20 that portfolio however notes in particular that i t is not clear how the taint test is to be applied if there are three or more reductions due to the existence of three or more children as respondent notes on brief in the examples of the taint test found in the bna portfolio the number of reductions that are tested under the above-cited temporary regulations always matches the number of minor children of the taxpayer it appears that the amount of spousal support payments remaining after all child-related reductions are taken into account is not considered to be child_support and the so-called taint test is not applicable to that amount month per child and that the amount of dollar_figure per month described in the parties separation agreement is calculated to provide support for the minor children as well as petitioner here the monthly spousal support payments were for the support and maintenance of petitioner and the three minor children because neither the separation agreement the divorce decree nor the shared parenting plan specifically designated any portion of the spousal support payments for the support of the children the entire amount of such payments is includible in petitioner’s income as alimony subject_to respondent’s adjustments discussed above see sec_1_71-1 income_tax regs see also maes v united_states no cv-09-42-h-dwm u s dist lexis at d mont date if the payee can exercise complete discretion on how to spend the payment and the parties did not clearly calculate part of the payment to constitute child_support then the entire payment is alimony and taxable to the payee after the three adjustments for the child_support portion of the spousal support payments she received in petitioner has not demonstrated that these payments should be treated as something other than alimony to reflect the foregoing decision will be entered for respondent