Dunn v. Comm'r of Internal Revenue
| Decision Date | 30 May 1978 |
| Docket Number | Docket No. 7488-77. |
| Parties | STANLEY A. DUNN, PETITIONER v. COMMISSIONER of INTERNAL REVENUE, RESPONDENT |
| Court | U.S. Tax Court |
OPINION TEXT STARTS HERE
Held, a temporary order by a Wisconsin court under sec. 247.23, Wisconsin Statutes Annotated, providing for temporary alimony, child support, and payment of debts does not cause the parties thereto to be “legally separated” within the meaning of sec. 143(a)(2), I.R.C. 1954. Stanley A. Dunn, pro se.
Rogelio A. Villageliu, for the respondent.
Respondent determined a deficiency in petitioner's Federal income tax for the calendar year 1974 in the amount of $99.64. The issue for decision is whether petitioner is entitled to file his return for the calendar year 1974 as a single person or is required to file as a married person filing a separate return.
All of the material facts have been stipulated and are found accordingly. 1
Petitioner is an individual who lived in Madison, Wis., at the time of the filing of his petition in this case. He filed a Federal income tax return for the calendar year 1974 checking his filing status as “single” and computing his tax accordingly.
On January 28, 1974, Elinor B. Dunn, who was then petitioner's wife, filed a petition seeking a divorce from petitioner in the County Court, Family Court Branch of Jefferson County, Wis. In this petition she alleged that she had insufficient funds to carry on the action and to support herself and the minor child of the parties, and further that she believed that the defendant was likely to interfere with her personal liberty and her custody of their minor child and to come upon the premises occupied by her as a home unless restrained by an order of the court. She therefore prayed that a hearing be held and a temporary order entered pursuant to the provisions of section 247.23, Wisconsin Statutes, providing as follows:
a. Defendant pay a reasonable sum for temporary alimony and for the support of the minor child and a reasonable sum to enable petitioner to maintain this action.
b. Defendant be prohibited from imposing any restraint upon petitioner or the minor child of the parties and from disposing of or encumbering any of his property or removing the same out of the state.
c. For such further order as the Court or Family Court Commissioner may deem just and reasonable under the circumstances.
On the same day that the petition was filed the court issued an order requiring petitioner to show cause why the temporary order requested by his wife should not be granted, and restraining him from imposing any restraints upon his wife's liberty, or disposing of or encumbering or removing out of the State any property, or entering on the premises occupied by his wife pending a hearing on the order.
On March 29, 1974, a temporary order was issued by the court requiring petitioner to pay alimony to his wife and child support for his child, and to pay fees to his wife's attorney, and providing that the property of the parties or the enjoyment thereof remain as it presently was. The order further provided:
7. Defendant shall be responsible for the debts of the parties incurred prior to the separation of the parties.
On April 3, 1974, Elinor B. Dunn, by her attorneys, filed a complaint in which she alleged in paragraphs 1 through 6 the general jurisdictional requirements in seeking a divorce, and further alleged as follows:
7. The plaintiff herein is a fit and proper person to have the custody of the minor child of the parties.
8. No action for divorce, legal separation or annulment by either of the parties hereto against the other has been commenced at any time, or is pending in any other court or before any judge thereof, in this state or elsewhere.
9. Neither of the parties has been previously divorced except as follows: Defendant was divorced in 1957 in Reno, Nevada.
10. This action is not brought by reason of any fraud or collusion between the parties hereto.
11. This action is based on the cause of action stated in Section 247.07(1) and 247.07(4) of the Wisconsin Statutes, specifically: Adultery by the defendant and cruel and inhuman treatment of the plaintiff by the defendant by means other than personal violence, and by personal violence said cruel and inhuman treatment being unreasonable and unwarranted rendering the parties incapable of performing their marital duties and having a detrimental effect on the mental and physical health of the plaintiff.
In this petition Mrs. Dunn sought a divorce from petitioner, custody of the minor child, an award of alimony and support money, division of the estate, and payment by petitioner of her attorney's fees. Petitioner filed an answer and counterclaim to Mrs. Dunn's petition in which he denied the allegations made in paragraphs 7 and 11 of the complaint, and in the counterclaim alleged as follows:
1. That the defendant realleges paragraphs 1, 2, 3, 4, 5, 6, 8, 9, and 10 of the plaintiff's complaint as though set forth in full herein.
2. That the grounds for this counterclaim are cruel and inhuman treatment of the defendant by the plaintiff.
3. That the defendant is a fit and proper person to have the care, custody, and control of the minor child of the parties.
In this counterclaim petitioner sought a divorce from Mrs. Dunn.
On January 29, 1975, the judge of the Jefferson County Court entered a memorandum providing for division of the properties of Mrs. Dunn and petitioner, custody of the minor child of petitioner and Mrs. Dunn to be granted to Mrs. Dunn, and alimony and child support to be paid by petitioner. On June 12, 1975, the judge of the County Court for Jefferson County entered a Findings of Fact and Conclusions of Law reciting that the action had come on for hearing on January 6, 1975, giving the background of the action and finding that —- The Family Court Commissioner has certified that a reconciliation effort has been made, which certification has been filed and entered in the record book; and he has made a fair and impartial investigation of the case and has fully advised the court as to the merits of the case and the rights and interests of the parties and the public, and the efforts made toward reconciliation.
The court further found that both of the parties are fit and proper persons to have the care, custody, and control of the minor child of the parties, and that —-
No action for divorce, legal separation or annulment by either of the parties hereto against the other has been commenced at any time, or is pending in any other court or before any judge thereof, in this state or elsewhere, * * *
The Conclusions of Law stated in part as follows:
1. The plaintiff is entitled to a judgment of divorce from the defendant upon the grounds of cruel and inhuman treatment.
2. Said judgment of divorce shall be subject to the following statutory restrictions:
(a) So far as it affects the marital status of the parties, said judgment shall not be effective until the expiration of six (6) months from the date of the granting thereof, except that it shall immediately bar the parties from cohabitation together and except that it may be reviewed on appeal during said six month period. But in case either party dies within said period, such judgment, unless vacated or reversed, shall be deemed to have entirely severed the marriage relation immediately before such death.
(b) Neither of the parties to this action shall marry again until six months after the granting of said judgment on the 6th day of January, 1975, and the marriage of either of the parties to this action attempted before the expiration of six months from the date of the granting of this judgment shall be null and void.
Also on June 12, 1975, the County Court, Family Court Branch, Jefferson County, Wis., entered a judgment of divorce which, insofar as here pertinent, provided as follows:
1. That the bonds of matrimony heretofore subsisting between the plaintiff, Elinor B. Dunn, and the defendant, Stanley A. Dunn, be and the same are hereby dissolved; provided, however, that said judgment so far as it affects the marital status of the parties shall not be effective until the expiration of six (6) months from the date of the granting of said judgment, except that it shall immediately bar the parties from cohabitation together and except that it may be reviewed on appeal during said period. But in case either party dies within said six month period, such judgment, unless vacated or reversed, shall be deemed to have entirely severed the marriage relation immediately before such death.
2. Neither of the parties to this action shall marry again until six (6) months after the granting of said judgment on the 6th day of January, 1975, and the marriage of either of the parties to this action attempted before the expiration of six months from the date of the granting of this judgment shall be null and void.
Respondent in his notice of deficiency determined that petitioner was not entitled to file as a single person because he was legally married at the end of 1974. Respondent accordingly recomputed petitioner's tax liability on the basis of a married individual filing a separate return.
Section 1(c), I.R.C. 1954,2 imposes at the rate specified therein a tax on every individual, other than a surviving spouse, who is not a married individual as defined in section 143. Section 143 3 provides that the determination of whether an individual is married shall be made at the close of his taxable year, and that “An individual legally separated from his spouse under a decree of divorce or of separate maintenance shall not be considered as married.” Section 1.143-1(a), Income Tax Regs., which we specifically approved...
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