Angela M. Graham - Page 5

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          Government, including military retirement pensions, may                     
          constitute gross income.  Sec. 1.61-11, Income Tax Regs.                    
               The United States Supreme Court in McCarty v. McCarty, 453             
          U.S. 210 (1981), held that Federal law as then in effect                    
          precluded a State court from dividing military retirement pay as            
          community property.  However, in September of 1982, in response             
          to McCarty, Congress enacted the Uniformed Services Former                  
          Spouses' Protection Act (USFSPA), Pub. L. 97-252, 96 Stat. 730,             
          which authorized State courts to treat military retirement pay in           
          accordance with State law, thereby allowing State courts to                 
          consider military pensions as community assets for distribution             
          in divorce proceedings.  That Act was made retroactive to the day           
          before McCarty was decided.                                                 
               At the time her former husband retired in 1983, the Federal            
          Government, consistent with the USFSPA, began paying to                     
          petitioner her designated share of the pension under the Decree.            
          Petitioner concedes that the amount of the pension received in              
          1991, $7,258.37, represents an award of community property.  It             
          therefore constitutes gross income in that year under the general           
          rule of section 61(a)(11).  United States v. Mitchell, 403 U.S.             
          190 (1971); Eatinger v. Commissioner, T.C. Memo. 1990-310.                  
          Accordingly, respondent is sustained on this issue.                         
               Next we must consider whether petitioner is liable for the             
          section 6662(a) accuracy-related penalty.  Section 6662(a)                  
          imposes a 20-percent penalty on the portion of the underpayment             




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