Wondsel v. Commissioner, Docket No. 3414-62.

• Decision Date: 12 August 1964
• Docket Number: Docket No. 3414-62.
• Citation: 1964 TC Memo 213,23 TCM (CCH) 1278
• Parties: Harold E. Wondsel v. Commissioner.
• Court: U.S. Tax Court

23 T.C.M. (CCH) 1278 (1964)

T.C. Memo. 1964-213.

Harold E. Wondsel v. Commissioner.

Docket No. 3414-62.

United States Tax Court.

Filed August 12, 1964.

Gerald H. Ullman, 120 Broadway, New York, N. Y., for the petitioner. Rudolph J. Korbel, for the respondent.

Memorandum Opinion

FAY, Judge:

The Commissioner determined deficiencies in petitioner's income tax as follows:

                  Calendar Year    Deficiency
                  1957...........    $6,000.76
                  1958...........    6,681.55
                  1959...........    5,583.72
                

The issues for decision are:

1. Whether payments made by Harold E. Wondsel to May White Wondsel during the years 1957, 1958 and 1959 are deductible in computing his taxable income for those years.

2. Whether payments made by Harold E. Wondsel to Virginia Wondsel during the years 1957, 1958 and 1959 are deductible in computing his taxable income for those years.

3. Whether Harold E. Wondsel and Joyce Wondsel were entitled to file joint Federal income tax returns for the years 1957, 1958 and 1959.

4. Whether Harold E. Wondsel is entitled to a $600 exemption for Joyce Wondsel in each of the years 1957, 1958 and 1959.¹

All of the facts have been stipulated and are so found.

Harold E. Wondsel (hereinafter referred to as petitioner) and Joyce Wondsel (hereinafter referred to as Joyce) filed joint Federal income tax returns for the years 1957 and 1958 with the district director of internal revenue, Upper Manhattan District, New York, and for the year 1959 with the district director of internal revenue, Manhattan District, New York.

Petitioner and May White Wondsel (hereinafter referred to as May) were married in Yonkers, New York, on July 2, 1927. There was no issue of this marriage. On November 16, 1936, in the City of New York, petitioner and May entered into a written separation agreement which provided inter alia (1) for the payment by petitioner to May of the sum of $65 per week for maintenance and support; (2) for an irrevocable life insurance policy to be maintained by petitioner in the amount of $5,000 for the benefit of May; and (3) that in the event of the entering of any judgment or decree of absolute divorce, the terms and conditions of the written separation agreement relative to maintenance and support and such other provisions as may be pertinent, at the election of May, should be incorporated therein.

On November 8, 1937, the following decree was issued by the Circuit Court of the Eleventh Judicial Circuit of Florida, in and for Dade County:

IN THE CIRCUIT COURT OF THE ELEVENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR DADE COUNTY. IN CHANCERY.

Harold Everett Wondsel Plaintiff v May White Wondsel Defendant. No: 50453

FINAL DECREE OF DIVORCE

This cause coming on this day to be heard upon the motion of the plaintiff for the entry of a final decree herein, and the Court being fully advised in the premises, and having read the report of the Special Master filed in this cause, and having read the Bill of Complaint, and it appearing to the Court that a Decree Pro Confesso was duly entered in this cause against May White Wondsel on the 1st day of November, A. D., 1937, and it further appearing that the Court has jurisdiction of the parties hereto and of the subject matter hereof, and that the allegations of the Bill of Complaint have been proven and that the equities are with the plaintiff.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED, that the bonds of matrimony now and heretofore existing between the plaintiff, Harold Everett Wondsel, and the defendant, May White Wondsel, be the same hereby dissolved and set aside that the plaintiff and defendant be granted a divorce, a vinculo matrimonii, each from the other.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the plaintiff, Harold Everett Wondsel, shall pay to the defendant, May White Wondsel, the sum of sixty-five dollars ($65.00) per week until the defendant, May White Wondsel, shall remarry, or for so long as she shall live, or until further orders of the Court.

IT IS FURTHER ORDERED, ADJUDGED AND DECREED THAT the plaintiff, Harold Everett Wondsel, shall maintain and carry an insurance policy in the sum of five thousand dollars ($5,000), payable to the said defendant, May White Wondsel.

DONE AND ORDERED IN CHAMBERS, in Miami, Dade County, Florida, this 8th day of November, A. D., 1937.

signature illegible CIRCUIT JUDGE

On February 7, 1947, petitioner voluntarily increased the payment to May to $80 per week. The agreement by petitioner to increase the payment was oral. Throughout the years in issue petitioner has paid $65 per week to May pursuant to the Florida decree and $15 per week pursuant to his voluntary oral agreement. Petitioner has deducted the amount of $80 on his returns for said years. May has declared the amount of $65 per week as income and paid the tax due thereon in each of the years involved.

On May 11, 1939, petitioner and Virginia Wondsel (hereinafter referred to as Virginia) went through a marriage ceremony in the City of Greenwich, State of Connecticut. There was no issue of this marriage. Petitioner and Virginia resided in New York until 1943 when they moved to New Jersey. They resided in New Jersey until their separation on February 21, 1946.

On February 6, 1941, the following order was entered by the Supreme Court of the State of New York, in the County of New York, upon the default of petitioner and Virginia:

At a Special Term, Part 2, of the Supreme Court of the State of New York, held in the County of New York, at the County Court House, Pearl and Centre Streets, in the Borough of Manhattan, in said County, on the 6 day of February, 1941.

Present: Honorable Morris Eder Justice. Mae sic White Wondsel, Plaintiff, — against — Harold E. Wondsel and "Virginia" Lillis, (first name "Virginia" being fictitious, said defendant's true name being unknown to plaintiff), Defendants.

The summons and verified complaint herein having been duly served on the defendant Harold E. Wondsel, on the 28th day of May, 1940, as appears more fully by the affidavit of Louis Lipshitz sworn to May 28, 1940, which is annexed to the original summons and verified complaint; and the summons and verified complaint herein having been duly served upon the defendant "Virginia" Lillis (first name "Virginia" being fictitious, said defendant's true first name being unknown to plaintiff) on the 3rd day of June, 1940, as appears more fully by the affidavit of Ruth Coombs sworn to June 4, 1940, which is annexed to the original summons and verified complaint; and it appearing that the time for either of the said defendants to appear or plead or make any motion addressed to the complaint has expired, and that said defendants have failed to appear or plead or make any motion addressed to the complaint, and that the time of the defendants to appear or plead or make any motion addressed to the complaint has not been extended by stipulation or otherwise, and that said defendants are in default; and the costs of this action having been duly taxed, it is

On motion of O'Brien, Driscoll & Raftery, attorneys for the plaintiff.

ORDERED, ADJUDGED AND DECREED that plaintiff Mae sic White Wondsel of 2 Horatio Street, New York City, have judgment against the defendand Harold E. Wondsel of 1560 Broadway, New York City, and defendant "Virginia" Lillis (first name "Virginia" being fictitious, said defendant's true first name being unknown to plaintiff), of 40 Orienta Point Apartments, Mamaroneck, New York, by default for the relief demanded in the complaint and it is further

ORDERED, ADJUDGED AND DECREED that plaintiff Mae sic White Wondsel is the lawful wife of the defendant Harold E. Wondsel; and it is further

ORDERED, ADJUDGED AND DECREED that an alleged divorce purported to have been procured by the defendant Harold E. Wondsel from the plaintiff Mae sic White Wondsel in the State of Florida is null and void and of no force and effect in law; and it is further

ORDERED, ADJUDGED AND DECREED that the alleged marriage between the defendant Harold E. Wondsel and the defendant "Virginia" Lillis (first name "Virginia" being fictitious, said defendant's true first name being unknown to plaintiff) is null and void and of no force and effect, and that said defendants are not and never have been husband and wife; and it is further

ORDERED, ADJUDGED AND DECREED that the plaintiff Mae sic White Wondsel of 2 Horatio Street, New York City, have judgment against the defendants Harold E. Wondsel of 1560 Broadway, New York City, and "Virginia" Lillis (first name "Virginia" being fictitious, said defendant's true first name being unknown to plaintiff), of 40 Orienta Point Apartments, Mamaroneck, New York, for $33.75 costs of this action, and that plaintiff have execution therefor.

Enter, M. E. J. S. C. ARCHIBALD R. WATSON Clerk

May was at all times a resident of New York.

On February 21, 1946, petitioner and Virginia entered into a written separation agreement which provided, inter alia, for the payment by petitioner to Virginia of the sum of $200 per month for her maintenance and support. The agreement further provided:

Fourth: Each of the parties reserves the right to institute an action for divorce against the other, upon any ground, and in any jurisdiction in which such action may be maintained, and should either party obtain a divorce from the other, the provisions of this agreement shall be recognized as in entire settlement of alimony, dower rights and all other property rights and claims as between the parties hereto; and the provisions of this agreement touching alimony may be presented to the court, and if practice permits, be embodied in the proper interlocutory or final decree of said court fixing the property rights of the parties, but in any event this agreement shall have the same force and effect as though set forth at length in any such order in any such divorce proceedings.

On July 5, 1946, the following decree was issued by ...