Untermann v. Comm'r of Internal Revenue, Docket No. 89381.

Citation38 T.C. 93
Decision Date20 April 1962
Docket NumberDocket No. 89381.
PartiesJOHN J. UNTERMANN, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
CourtUnited States Tax Court

OPINION TEXT STARTS HERE

John J. Untermann, pro se.

William F. Fallon, Esq., for the respondent.

John J. Untermann and Sarah C. Kaltman were purportedly married in Connecticut in October, 1953, and have lived together since that time in New Jersey. John and Sarah were not legally married under the laws of New Jersey, since that State recognizes the validity of his previous marriage to Sally Cheney. Held, John and Sarah were not entitled to file a joint return for 1956, 1957, and 1958. Held, further, John is not entitled to a dependency exemption for Sarah for said years.

OPINION.

BLACK, Judge:

The Commissioner determined income tax deficiency as follows:

+--------------------+
                ¦Year  ¦Deficiency   ¦
                +------+-------------¦
                ¦1956  ¦$515.22      ¦
                +------+-------------¦
                ¦1957  ¦512.53       ¦
                +------+-------------¦
                ¦1958  ¦378.34       ¦
                +--------------------+
                

The question presented is whether petitioner is entitled to file a joint income tax return with Sarah Cayer Untermann, also known as Sarah Cayer Kaltman, and claim her as an exemption.

Respondent's motion to dismiss the case for lack of jurisdiction insofar as it relates to Sara C. Untermann was granted and John J. Untermann remains as the sole petitioner.

The facts have been fully stipulated by the parties and are so found. In part, these facts are as set forth in the following opinions of the Courts of New Jersey: Untermann v. Untermann, 35 N.J.Super. 367, 114 A.2d 311 (App. Div. 1955); Untermann v. Untermann, 19 N.J. 507, 117 A.2d 599 (1955); Untermann v. Untermann, 43 N.J.Super. 106, 127 A.2d 903 (App. Div. 1956). Only such facts as seem necessary to an understanding of the issue will be stated herein.

Petitioner resides in the city of East Orange, Essex County, New Jersey. The returns for the years here involved were filed with the district director of internal revenue at Newark, New Jersey.

Sally Cheney obtained a divorce a vinculo from Harold Cheney in Nevada on April 15, 1929. Process for the divorce proceeding was by substituted service and Harold Cheney was personally served in New Jersey. Petitioner married Sally immediately thereafter in Nevada. Petitioner and Sally returned to New Jersey, took up residence and lived together for a number of years. They separated prior to the death of Harold Cheney and they did not live together thereafter.

Petitioner obtained a decree divorce from Sally in Juarez, Mexico, on September 28, 1953. In October 1953, petitioner went through a marriage ceremony with Sarah Cayer Kaltman in Connecticut. Petitioner and Sarah returned to New Jersey, took up residence, and have lived together in New Jersey up to the present time.

Sally, upon learning of the Mexican decree, instituted a suit against petitioner and Sarah in New Jersey seeking a declaratory judgment to establish her status as the legal wife of petitioner and to declare petitioner's Mexican divorce invalid. In answer to the complaint, petitioner affirmatively charged that Sally's Nevada divorce decree was illegal which rendered void his marriage to her. Defendant Sarah added a counterclaim for a declaratory judgment to establish her status as petitioner's legal wife. Sally's complaint was dismissed after appeals up to the Supreme Court of New Jersey. It was determined, however, that petitioner's Mexican divorce was worthless and invalid. Furthermore, the Supreme Court of New Jersey held that petitioner was estopped to contest the validity of the Nevada divorce because of his participation in its procurement and his reliance on the decree. Sally's complaint was dismissed under the doctrine of unclean hands because of her fraudulent conduct in securing the Nevada divorce from Cheney. Her Nevada divorce was not invalidated although the court questioned its validity on the grounds that she was never domiciled in Nevada. It was also found that there was no evidence to sustain a common law marriage of Sally and petitioner since her first husband died after Sally and petitioner had separated. Sarah's counterclaim was dismissed without comment.

In a subsequent separate maintenance action Sally, after an appeal to the Superior Court of New Jersey, obtained an order that petitioner pay her maintenance and support. The Superior Court ruled that a maintenance action seeks to maintain the marital relation and that the policies of the law which induced the courts to disfavor her prior suit would not be applicable. On remand the trial court entered a final judgment dated January 24, 1958, which in material part reads as follows:

it now appears to the court that the plaintiff and defendant were lawfully married on the 15th day of April, 1929, and that the defendant without justifiable cause abandoned the plaintiff and has separated himself from her and refuses and neglects to maintain and provide for her. * * *

Petitioner filed joint income tax returns with Sarah for the taxable years 1956, 1957, and 1958 wherein he claimed a $600 exemption for her in each year.

The Commissioner has determined that petitioner was not legally married to Sarah for the taxable years involved and accordingly that he was not entitled to file a joint return with her or claim her as an exemption.1 Petitioner contends that he was legally married to Sarah because the courts of New Jersey have refused to find Sally to be his legal wife and this his ceremonial marriage to Sarah, never having been set aside, is controlling on the Tax Court.

Both parties agree that the marital status of the petitioner is governed by State law. We have previously held that marriage, its existence and dissolution, is particularly within the province of the States, Marriner S. Eccles, 19 T.C. 1049 (1953), affd. 208 F.2d 796 (C.A. 4, 1953), and Kenneth T. Sullivan, 29 T.C. 71 (1957), affd. 256 F.2d 664 (C.A. 4, 1958), and there is no dispute as to the applicability of New Jersey law to the present case.

It is also well settled that the respondent has not only the right but the duty of determining whether a man and woman who file a joint return are, in fact, legally married and entitled to file such a return, Albert Gersten, 28 T.C. 756 (1957), reversed on other grounds 267 F.2d 195 (C.A. 9, 1959).

Our first question, therefore, is whether petitioner and Sarah were legally married under the laws of the State of New Jersey. This question in turn hinges on whether or not petitioner and Sally were still legally married and it is this issue which has been extensively litigated by Sally, Sarah, and petitioner in the courts of New Jersey. Under both the laws of New Jersey and Connecticut, if petitioner's marriage to Sally is valid and subsisting then his subsequent marriage to Sarah in Connecticut is totally void.2 After a careful examination of the New Jersey court opinions with reference to the status of petitioner's and Sally's marriage, we are convinced that New Jersey recognizes the validity of that marriage. We do not believe, however, that recognition of Sally's and petitioner's marriage rested upon the proposition that the courts of New Jersey had to accept the...

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16 cases
  • Boyter v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • 6 Agosto 1980
    ...common law marriage (von Tersch v. Commissioner, 47 T.C. 415 (1967)); the effect of an invalidated Mexican divorce decree (Untermann v. Commissioner, 38 T.C. 93 (1962)); the effect of an interlocutory divorce decree (Eccles v. Commissioner, supra ); and whether the taxpayer is legally separ......
  • Toscano v. CIR
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • 28 Abril 1971
    ...Gersten, 1956, 28 T.C. 756, 770-771, aff'd, 9 Cir., 1959, 267 F.2d 195, 199-200; Estate of Buckley, 1962, 37 T.C. 664, 672-673; Untermann, 1962, 38 T.C. 93; Borax, 1963, 40 T.C. 1001, 3 See also Brown, 1968, 51 T.C. 116. 1 Rule 19(f) reads: "No motion to vacate or revise a decision may be f......
  • Borax v. Comm'r of Internal Revenue
    • United States
    • U.S. Tax Court
    • 20 Septiembre 1963
    ...208 F.2d 796 (C.A. 4, 1953); Albert Gersten, 28 T.C. 756 (1957), affirmed on this issue 267 F.2d 195 (C.A. 9, 1959); John J. Untermann, 38 T.C. 93 (1962). The reason for looking to State law here is to aid in determining the status of divorce as required by the Federal statute; and we canno......
  • Ross v. Commissioner
    • United States
    • U.S. Tax Court
    • 29 Diciembre 1964
    ...body of Federal law on this subject, resort to state law is appropriate. Ruth Borax Dec. 26,320, 40 T. C. 1001 (1963); John J. Untermann Dec. 25,453, 38 T. C. 93 (1962).3 In Ruth Borax, supra, we where as here all the parties in interest reside in the State of New York and a court of that S......
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