Siegert v. Comm'r of Internal Revenue , Docket No. 2390-66.

• Decision Date: 15 January 1969
• Docket Number: Docket No. 2390-66.
• Citation: 51 T.C. 611
• Parties: INES SIEGERT, PETITIONER v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT
• Court: U.S. Tax Court

51 T.C. 611

INES SIEGERT, PETITIONER

v.COMMISSIONER OF INTERNAL REVENUE, RESPONDENT

Docket No. 2390-66.

Tax Court of the United States.

Filed January 15, 1969.

Held, payments made by petitioner's former husband to her pursuant to order of a responding State court under provisions of the Uniform Reciprocal Enforcement of Support Act upon her petition for support of a minor child are not alimony, includable in petitioner's income under sec. 71 of the 1954 Internal Revenue Code. Arthur J. England, Jr., for the petitioner.

W. Reeder Glass, for the respondent.

OPINION

HOYT, Judge:

Respondent determined the following income tax deficiencies against petitioner:

+-----------------------+
                ¦Taxable  ¦             ¦
                +---------+-------------¦
                ¦year     ¦Deficiency   ¦
                +---------+-------------¦
                ¦1962     ¦$216         ¦
                +---------+-------------¦
                ¦1963     ¦214          ¦
                +---------+-------------¦
                ¦1964     ¦195          ¦
                +-----------------------+
                

The sole issue for decision is whether amounts paid to the petitioner by her former husband under a court decree pursuant to the Uniform Reciprocal Enforcement of Support Laws of Florida and Virginia were alimony payments under section 71(a).¹

All of the facts have been stipulated and are found accordingly. The stipulation of facts, together with the related exhibits, are incorporated herein by this reference. Ines Siegert, the petitioner, was a resident of Coral Gables, Fla., at the time she filed her petition in this case. Her tax returns for 1962, 1963, and 1964, were filed with the district director of internal revenue, Jacksonville, Fla.

Petitioner and Sheldon Ray Siegert, hereinafter referred to as Sheldon, were married on February 2, 1946. One child, Steven Victor Siegert, was born of this marriage on November 10, 1947.

Subsequently, petitioner and Sheldon experienced marital difficulties, and on or about November 19, 1956, they entered into a ‘Property Agreement’ which provided, in pertinent part, as follows:

The Undersigned, SHELDON RAY SIEGERT, and INES SIEGERT, being married each to the other on the 2nd day of February, 1946, at Siana, Italy, and being of sound mind and body, do hereby mutually agree and exchange mutual promises to abide by this, a property and custody agreement, in any action for divorce which either party might cause to be filed in the future:

I

That SHELDON RAY SIEGERT, hereinafter referred to as the party of the first part, hereby promises and agrees that permanent custody and control of the minor child, STEVEN VICTOR SIEGERT, eight years of age, shall be vested in INES SIEGERT with rights of reasonable visitations reserved for the party of the first part.

II

That the party of the first part agrees to give, and the party of the second part agrees to accept the amount of $225.00 a month, through the month of May, 1957, as support and alimony for the party of the second part, and the minor child, STEVEN VICTOR SIEGERT; and further, the party of the first part agrees to pay, and the party of the second part agrees to accept $200.00 a month for support and alimony, from the first of June, 1957, thereafter until such time as the party of the second part, INES SIEGERT, should remarry, or until the minor child shall become legally of age.

III

That in the event of remarriage of the party of the second part, (sic) is mutually agreed between the party of the first part and the party of the second part, that all alimony payments shall cease, but that the part of the first part shall pay over unto the party of the second part, the amount of $100.00 per month support of the minor child, STEVEN VICTOR SIEGERT, until such time as he shall reach his legal majority.

On January 18, 1957, petitioner was granted a divorce by the Circuit Court of the Eleventh Judicial Circuit in and for Dade County, Fla. The property settlement was incorporated into and made a part of the final decree by reference.

Petitioner has never remarried.

On October 12, 1960, petitioner filed a petition in the Circuit Court of the 11th Judicial Circuit in and for Dade County, Fla., seeking an order for support of her son from her former husband, Sheldon, under the provisions of the Uniform Reciprocal Enforcement of Support Act. (Fla. Stat. Ann. ch. 88), hereinafter called the Uniform Support Act. This petition was not acted upon by the courts of Virginia when forwarded to Virginia because Sheldon could not be located at the address shown in the petition.

Thereafter, on or about June 15, 1961, in another and different action, petitioner secured a judgment in the Circuit Court of Hanover County, Va., against Sheldon for $5,800, representing delinquent payments under the property agreement. Petitioner has never collected any part of this judgment.

On August 7, 1961, petitioner again sought to compel her former husband to support his minor child; she filed another petition under the Uniform Support Act identical to the one referred to above, except that a new address was given for her former husband. This petition was forwarded by the Dade County, Fla., court to the Juvenile and Domestic Relations Court of Hanover County, Va., under procedures provided by the Uniform Support Act. Petitioner was required to complete an information sheet for filing in Florida in connection with her efforts to obtain support for her son from his father. This sheet was also forwarded to the Virginia court.

In response to the question, ‘Is there a complaint or order for support in any court?’ contained in the information form, the petitioner replies, ‘Yes Divorce Decree (1/8/57) Miami, Fla., ordered $100/alimony/mo. and $100/mo. child support, which he paid fairly regularly until June, 1959; alimony ‘til 1957.’ The more pertinent questions related to the petitioner's employment and salary, the ex-husband's employment and salary, and the last date of contribution for support. In answering the question, ‘What amount do you require for your child per week?’ petitioner replied $40.00.' The words ‘yourself and’ were deleted from the form. Both the information sheet and the petition itself indicate clearly that petitioner sought no support whatever for herself in this proceeding but only support for her minor child, Steven, and that she was relying upon the child's current needs and her former husband's ability to provide child support, not the prior agreement of the parties or the earlier Florida divorce decree.

The petition, which the Florida court forwarded to the Juvenile and Domestic Relations Court of Hanover County, Va., contained the following pertinent information:

1. THAT she (the petitioner) is the ex-wife of Sheldon R. Siegert * * *

2. THAT Petitioner is the mother and said Respondent is the father of the following-named dependent(s):

Steven b, 11/10/47

3. THAT said child is entitled to support from the Respondent under the provisions of the Uniform Reciprocal-Enforcement-of Support Act of this State (Chapter 29901, Laws of 1955), a copy of which is attached and made a part hereof.

4. THAT Respondent, on or about June, 1959 and subsequent thereto, refused and neglected to provide fair and reasonable support for the dependent according to his means and earning capacity.

5. THAT, upon information and belief, Respondent now is residing or domiciled at Hylas, Virginia (,) (r)eceives $350 (per) mo. from U.S. Gov't, and is within the jurisdiction of the Court of Va. which State has enacted a law substantially similar to the Uniform Reciprocal Enforcement of Support Act of this State.

Again all references to petitioner as a dependent were stricken from the form petition as indicated above, and only support for the minor child, Steven, was sought.

The ‘Clerk's Certificate,‘ which is attached to the petition, certifies that the following papers were mailed to the Virginia court:

Certificate and Order of Judge;

Certified copy of Petition and Summons, with Sheriff's Affidavit attached;

Information Sheet and copy of Chapter 27996, Laws of 1953

Insolvency Affidavit

On January 5, 1962, the Juvenile and Domestic Relations Court of Hanover County, Va., entered an order directing Sheldon to pay $100 monthly, commencing on January 15, 1962, for the support of petitioner and her son. The Virginia court's findings, included in a printed form for an order for support, in pertinent part, were as follows:

Petitioner and the dependent/s named in the Petition is/are in need and entitled to support from the Respondent and that the Respondent is chargeable with support as alleged in the aforementioned Petition.

THE COURT FURTHER FINDS as a matter of fact that Respondent receives $350.00 per month.

In a letter dated January 8, 1962, the lawyer representing petitioner in Virginia, Ernest W. Williams, informed her of the outcome of the proceedings in the following words:

Mr. Siegert discharged his lawyer and obtained the services of another, consequently we tried the case on Friday.

Judge Landram, using the contract as the basis for what was a proper amount of support money awarded your boy $1y0.00 per month, payments to begin this month, on or before the 15th.

Payments will be made to the court here, and this court will mail it to the court there. * * *

In each of the calendar years 1962, 1963, and 1964, petitioner received 12 $100 payments from the clerk of the Circuit Court of Dade County, Fla., which payments were transmitted from the Juvenile and Domestic Relations Court of Hanover County, Va., and which had been received from Sheldon Siegert.

On June 29, 1965, petitioner, in response to a notice of determination of deficiency in income tax for the calendar year 1962, filed a formal protest with the district director of internal revenue, Jacksonville, Fla. The petitioner submitted certain facts to demonstrate that she was not liable for the asserted income tax deficiency. Among others, the petitioner made the following allegations:

3. Upon taxpayer's ex-husband's failure to make payments under the above Property...