Jo Ann Porter - Page 6

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          paid and also argues that she is entitled to one-half of the                
          income tax credit attributable to that income.                              
               Respondent has determined a deficiency in petitioner's                 
          income tax for 1991 on the ground that the military retirement              
          payment of $10,107 received by petitioner in 1991 and omitted               
          from her return is gross income under section 61 and should have            
          been reported as income on such return.  Respondent's                       
          determinations are presumed correct, and petitioner has the                 
          burden of proving otherwise.  Rule 142(a); Welch v. Helvering,              
          290 U.S. 111, 115 (1933).                                                   
               In general, State law governs the creation of legal                    
          interests and rights in property and Federal law determines the             
          Federal tax consequences of transactions affecting such rights.             
          United States v. Mitchell, 403 U.S. 190 (1971); Estate of Gamble            
          v. Commissioner, 69 T.C. 942, 948 (1978).                                   
               As a preliminary matter, we conclude that the payment at               
          issue in this case represents petitioner's community property               
          interest in Kenneth's disposable retired pay.  New Mexico is a              
          community property State.  N.M. Stat. Ann. sec. 40-3-6 to 40-3-17           
          (Michie 1994); Ruggles v. Ruggles, 116 N.M. 52, 62, 860 P.2d 182,           
          192 (1993).  Community property is "property acquired by either             
          or both spouses during marriage which is not separate property."            
          N.M. Stat. Ann. sec. 40-3-8B.  Separate property includes                   
          "property designated as separate property by a judgment or decree           
          of any court having jurisdiction" and "property designated as               




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