CIR v. Gotthelf, 83-85
Decision Date | 28 January 1969 |
Docket Number | No. 83-85,Dockets 32363-32365.,83-85 |
Citation | 407 F.2d 491 |
Parties | COMMISSIONER OF INTERNAL REVENUE, Petitioner, v. Sara N. GOTTHELF, Respondent. Theodore J. GOTTHELF and Toby Gotthelf, Petitioners, v. COMMISSIONER OF INTERNAL REVENUE, Respondent. |
Court | U.S. Court of Appeals — Second Circuit |
Harvey M. Sklaver, New York City, for petitioners Theodore J. Gotthelf and Toby Gotthelf.
Richard M. Roberts, Acting Asst. Atty. Gen., Washington, D. C. (Lee A. Jackson, C. Guy Tadlock, Marian Halley, Washington, D. C., attorneys, on the brief), for Commissioner of Internal Revenue Service as petitioner and respondent.
Seymour Reitknecht, New York City, for respondent Sara N. Gotthelf.
Before WATERMAN and MOORE, Circuit Judges, and BONSAL,* Judge.
Theodore and Toby Gotthelf appeal from a decision of the Tax Court entered on November 24, 1967, which found a deficiency in income tax due from them for the taxable year 1960 in the amount of $1,320.87. The question presented for review is whether the provisions of a separation agreement between Theodore and Sara Gotthelf, his former wife, "fixed" a certain amount of money exclusively for the support of their two minor children.
The pertinent facts were stipulated, and incorporated by reference into the Tax Court's findings of fact. Sara and Theodore were married in 1951. They had two children, Nicole and Eric, born in 1955 and 1956, respectively. On March 28, 1958, they entered into a separation agreement. Divorce followed a week later and the separation agreement was incorporated by reference into the decree of divorce. The portion of that agreement important to this case reads as follows:
Equally important is the rider attached to the agreement:
This agreement shall be binding on the Estate of the husband to the extent of the payment of Seven Thousand ($7,000.00) Dollars for the benefit of the two children, as in this agreement provided for.
In his income tax return for the year 1960 Theodore, filing jointly with his present wife Toby, claimed a deduction of $12,000 for "Alimony" paid by him to Sara for that year pursuant to the terms of the above agreement. The Commissioner determined, and Theodore thereafter conceded, that the amount actually paid to Sara was $11,400. In any event, the Commissioner found that $7,000 of this amount was for child support rather than for alimony and was, therefore, not deductible by Theodore under the provisions of the Internal Revenue Code of 1954 which allows a deduction for the amount of alimony paid to a divorced spouse (26 U.S.C. § 215(a)) even if used for purposes of child support (26 U.S.C. § 71 (a)) unless the terms of the separation agreement "fix" the amount to be paid for child support. Theodore contested this determination in the Tax Court proceeding below, contending that the entire $11,400...
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