Jo Ann Porter - Page 7

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          separate property by a written agreement between the spouses".              
          N.M. Stat. Ann. sec. 40-3-8A(3), (5).  The record in this case              
          establishes that Kenneth's disposable retired pay is community              
          property, even though Kenneth sought to deduct petitioner's                 
          interest as alimony on his 1991 Form 1040.                                  
               Section 61 provides that, in general, gross income means all           
          income from whatever source derived, including pensions.  Sec.              
          61(a)(11); sec. 1.61-11, Income Tax Regs.  The disposable retired           
          pay received by petitioner in 1991 was from a community interest            
          in a military pension and constitutes pension income to her under           
          section 61(a)(11).  Eatinger v. Commissioner, T.C. Memo. 1990-              
          310; Denbow v. Commissioner, T.C. Memo. 1989-92; Lowe v.                    
          Commissioner, T.C. Memo. 1981-350.                                          
               Section 31 provides that the amount withheld as income tax             
          on wages shall be allowed to the recipient of the income as a               
          credit against the income tax.  For the purpose of the credit,              
          the recipient of the income is the person subject to the income             
          tax imposed under subtitle A upon the wages from which the tax              
          was withheld.  Sec. 1.31-1(a), Income Tax Regs.  The regulations            
          explain further that if a husband and wife domiciled in a                   
          community property State make separate returns, and each reports            
          for income tax purposes one-half of the wages received by the               
          husband, each spouse is entitled to one-half of the credit                  
          allowable for the tax withheld with respect to such wages.  Id.             






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