Stanley P. Zurn - Page 32

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          payments were not alimony and in settlement of her marital estate           
          with petitioner, the payments may not have been taxable to Ms.              
          Zurn.  We also note that if the $1,000 payments constituted Ms.             
          Zurn's income in the jointly held property, then petitioner could           
          have reduced the amount of income he reported with respect to               
          those properties.                                                           
               Petitioner presented credible evidence that respondent did             
          not rebut, other than her theory concerning what we have referred           
          to as peculiar circumstances.  Those circumstances are not                  
          sufficient to overcome the uncontroverted evidence offered by               
          petitioner.  It should be further noted that petitioner's real              
          estate tax information is part of the record in this case and Ms.           
          Zurn's income tax information reflecting how she treated the                
          $1,000 payments, ostensibly, is available to respondent.  Even if           
          the information was unavailable, Ms. Zurn testified and could               
          have been questioned at the trial.                                          
               Finally, petitioner points out that California courts have             
          held that a nunc pro tunc order will issue only where a mistake             
          of law or fact has been made.  Berry v. Berry, 294 P.2d 757 (Cal.           
          App. 2d 1956).  This Court is bound by the judgment of the                  
          highest court of a State, Commissioner v. Estate of Bosch, 387              
          U.S. 456 (1967), and we can give credence to judgments of lower             
          State courts.  In that regard, we have no reason to doubt that              
          the correction of the original decree in this case was in accord            






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