Richards v. Commissioner

• Decision Date: 16 January 1963
• Docket Number: Docket No. 93542.
• Citation: 1963 TC Memo 15,22 TCM (CCH) 63
• Parties: Robert C. & Charlotte R. Richards v. Commissioner.
• Court: U.S. Tax Court

22 T.C.M. (CCH) 63 (1963)

T. C. Memo. 1963-15.

Robert C. & Charlotte R. Richards v. Commissioner.

Docket No. 93542.

United States Tax Court.

Filed January 16, 1963.

Robert C. Richards, pro se. 20 W. Riverside Dr., Whitman, Mass. Raoul E. Paradis, Esq., for the respondent.

Memorandum Findings of Fact and Opinion

Respondent determined a deficiency in petitioners' income tax for 1958 in the amount of $135.96.

The question for decision is whether amounts, aggregating $600, paid to a divorced wife in 1958 by her former husband are includable in her gross income under Section 71(a), Internal Revenue Code of 1954, or whether they represent payments solely for support of a minor child, nontaxable under Section 71(b), in accordance with a retroactive amendment to the divorce decree.

Findings of Fact

Some of the facts have been stipulated and are incorporated herein by reference.

Robert C. Richards and Charlotte R. Richards, the petitioners herein, are husband and wife residing in Whitman, Massachusetts. They filed their joint Federal income tax return for the calendar year 1958 with the district director of internal revenue for the district of Massachusetts.

Charlotte was formerly married to Allen MacDonald. They were divorced on November 30, 1949,¹ in Massachusetts pursuant to a decree nisi, which became absolute after six months. Their son, Peter, was then about six years old. The decree provided in part that —

the libellant Charlotte have the care and custody of Peter Allen MacDonald, minor child of the parties, the libellee to have the right to visit said child at all reasonable times, said libellee to pay to the libellant the sum of fifteen (15) dollars each week for the support of herself and said child for one year, and thereafter, to pay the sum of twenty (20) dollars each week for such support.

Charlotte and Robert C. Richards were married on September 27, 1950.

During 1958 Charlotte had custody of Peter, and he resided with the petitioners.

After her remarriage Charlotte never received payments in the full amount required by the decree, but she did receive payments in reduced aggregate amounts from her former husband. The reduction in payments was made pursuant to an oral understanding reached between the parties after Charlotte's subsequent marriage. In 1958, she received from her former husband periodic payments of $50 a month, or a total of $600 for the year. Such payments were not reported as income on the petitioners' return for that year.

On March 15, 1960, pursuant to a petition filed the same day by Charlotte and assented to by her former husband, the Massachusetts divorce court modified the original divorce decree as follows:

IT IS DECREED that said decree dated November 30, 1949, be, and the same hereby is, modified in that the libellee is ordered to pay to the libellant the sum of fifty (50) dollars each month for the support and maintenance of the minor child in her custody, effective as of September 27, 1950.

Opinion

RAUM, Judge:

If the original divorce decree had not been amended there can be little question that the disputed payments would be chargeable as income to the wife under Section 71(a), Internal Revenue Code of 1954, and would not fall within Section 71(b).²Commissioner v. Lester 61-1 USTC ¶ 9463, 366 U. S. 299, has authoritatively settled the matter, holding that where the decree requires support payments for the wife and children without specifying the portion or amount thereof pertaining to the children, the statutory provisions³ relating to child support are inapplicable since the decree or written instrument incident to the divorce does not "fix" the amount payable for child support.

This Court had attempted to give a less rigid interpretation to these provisions (Dec. 23,746 32 T. C. 1156), but the Supreme Court ruled otherwise. It held that it is not enough that there be "a sufficiently clear purpose" as to the portion allocable to child support; rather, the decree or written instrument incident to the divorce must "specifically designate" or "fix" the amount or portion of the payment which is to go to the support of the children. 366 U. S. at pp. 303, 305. Accordingly, since the 1949 decree imposed upon the divorced husband the obligation of making certain periodic payments to the wife "for the support of herself and said child" without further specification as to the amount intended for the child, it is plain that any support payments made under that decree would not be covered by Section 71(b).

Is a different result required by reason of the 1960 modification of the decree? We think not. The payments in question were made in 1958. And notwithstanding the attempt to make the modification retroactive, it could not change the fact that when the controverted payments were made in 1958...