Pavel Dobra and Ana Dobra - Page 5

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          Discussion                                                                  
               Section 131(a) provides the general rule that “Gross income            
          shall not include amounts received by a foster care provider                
          * * * as qualified foster care payments.”  Section 131(b) defines           
          the “qualified foster care payments” (QFCP) referred to by                  
          section 131(a).  Under section 131(b)(1)(B), a payment may be a             
          QFCP only if it is either a “difficulty of care payment”, as                
          defined in section 131(c), or is “paid to the foster care                   
          provider for caring for a qualified foster individual in the                
          foster care provider's home” (emphasis added).3                             
               Finally, section 131(b)(2) defines a “qualified foster                 
          individual” as “any individual who is living in a foster family             
          home” (emphasis added).4                                                    
               The parties have stipulated that none of the payments at               
          issue were “difficulty of care payments”.  Accordingly, the                 


               3 Sec. 131(b) additionally requires that a "qualified foster           
          care payment" (QFCP) be paid by a State or tax-exempt placement             
          agency.  The payments at issue were made by the State of Oregon;            
          and respondent has not argued in this case that the State payment           
          requirement has not been met.  Cf. Cato v. Commissioner, 99 T.C.            
          633 (1992), in which the Commissioner argued that the payment               
          requirement of sec. 131 was not satisfied because the tax-exempt            
          placement agency was serving as a mere conduit for the payment of           
          funds from another source.                                                  
               4 With respect to payments made for the foster care of adult           
          individuals, the definition of a "qualified foster individual" in           
          sec. 131(b)(2) also requires that the individuals were placed in            
          the foster home by a State agency.  The parties have stipulated             
          that neither the notice of deficiency nor the pleadings raises an           
          issue as to whether this requirement was met.  Cf. Micorescu v.             
          Commissioner, T.C. Memo. 1998-398.                                          



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