Feinberg v. Commissioner of Internal Revenue, 10598.
Decision Date | 13 August 1952 |
Docket Number | No. 10598.,10598. |
Citation | 198 F.2d 260 |
Parties | FEINBERG v. COMMISSIONER OF INTERNAL REVENUE. |
Court | U.S. Court of Appeals — Third Circuit |
Albert L. Solodar, New York City (Max Wechsler, Philip J. Smith, New York City, on the brief), for petitioner.
Walter Akerman, Jr., Washington, D. C. (Ellis N. Slack, Acting Asst. Atty. Gen., Helen Goodner, Sp. Asst. to the Atty. Gen., on the brief), for respondent.
Before BIGGS, Chief Judge, and KALODNER and STALEY, Circuit Judges.
The question presented is whether certain payments by a taxpayer to his Florida-divorced wife were made pursuant to a written instrument "incident to" a decree of divorce, so as to be deductible from his gross income under Section 23(u) of the Internal Revenue Code.1
The deductibility of such payments depends upon whether they are includible in the wife's income under Section 22(k),2 which provides:
* * *"
The material facts have been stipulated. George J. Feinberg ("taxpayer") and Anna Feinberg were married in 1918 in New York, and were continuously domiciled in that state until 1939. Two children were born of this marriage: Bernice, born in 1920; and Arthur, born in 1922.
On February 10, 1940, after marital difficulties, taxpayer and his wife entered into a separation agreement which provided in part as follows:
Thereafter, on or about March 21, 1940, taxpayer instituted an action for divorce against his wife in the Circuit Court for the 11th Judicial District of Dade County, Florida. Anna Feinberg did not appear in that action, nor did counsel appear for her; service was by publication only. On May 27, 1940, taxpayer was granted a decree of divorce a vinculo matrimonii by the Florida court. In June, 1940, he married one Frances Finn, in New Jersey, where they now live.
In the year 1941, taxpayer's first wife, Anna Feinberg, instituted an action in the Supreme Court of New York, praying for a declaratory judgment that the Florida divorce decree was null and void and that she was still taxpayer's true and lawful wife. She also alleged that she had been induced to enter into the separation agreement as a result of taxpayer's fraudulent understatement of his earnings and assets, and requested the court to reform the agreement to conform to taxpayer's true financial condition. This action was settled by stipulation of the parties in June, 1942, and pursuant thereto the New York court entered a consent judgment, on November 17, 1942, declaring that Anna Feinberg was taxpayer's true and lawful wife and reforming the separation agreement in accordance with the stipulation of settlement.3
Pursuant to the original agreement of February 10, 1940, taxpayer made payments to Anna Feinberg in each of the taxable years here involved (1942 and 1943) at the rate of $3900 per annum ($75 per week),4 and deducted the entire amounts of these payments from his gross income for those years. The deductions were disallowed by the Commissioner of Internal Revenue, and taxpayer petitioned the Tax Court for a redetermination of the resulting deficiency in taxes.5 The Tax Court sustained the Commissioner on the ground that taxpayer had not met the burden of proving that the payments were made pursuant to a written instrument "incident to" a decree of divorce or separate maintenance, as required by Sections 23(u) and 22(k) of the Code.6
In doing so it stated that "While it appears that petitioner (taxpayer) and his wife (Anna Feinberg) had, prior to the execution of the separation agreement considered a possibility that petitioner (taxpayer) would seek a divorce * * *" such a possibility was insufficient under the applicable law. In support of the latter statement the Tax Court cited its prior ruling in Joseph J. Lerner, 15 T.C. 379, 386 that "* * * the possibility of divorce at some unspecified time is a far different thing from the anticipation of divorce by both parties at the time of the execution of the separation agreement which the statute requires in order that the payments under the separation agreement be considered `incident' thereto."
With respect to the Tax Court's reliance on Joseph J. Lerner, supra, it may be noted that its decision there was reversed by the United States Court of Appeals for the Second Circuit in Lerner v. Commissioner, 1952, 195 F.2d 296, 298. In reversing, the Court specifically held that there was no requirement in Section 22(k) that "* * * both parties jointly and positively anticipated legal divorce or separation at the moment they signed the agreement (for separate maintenance)", and cited its prior ruling to the same effect in Izrastzoff v. Commissioner, 1952, 193 F.2d 625, 627, 628.
We are in complete accord with the view expressed by the United States Court of Appeals for the Second...
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