Josephine A. Fulgham - Page 5




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          that she received in 1997 from DFAS is not includable in her                
          gross income for that year.3                                                
          Discussion                                                                  
               In the event of a divorce, a court may, pursuant to 10                 
          U.S.C. sec. 1408(c)(1) (1994), treat disposable military retired            
          pay either as property solely of the member of the Armed Forces             
          or as property of the member and his spouse in accordance with              
          the law of the jurisdiction of such court.4  If a divorce was               
          effective prior to February 3, 1991, the "disposable retired                
          pay", which may be treated as the property of the member and his            
          spouse, is the total monthly retired pay to which a member is               
          entitled less (among other items) amounts properly withheld for             
          Federal income tax.  10 U.S.C. sec. 1408(a)(4)(C) (1988);                   
          National Defense Authorization Act for Fiscal Year 1991, Pub. L.            
          101-510, sec. 555(b)(3), (e)(2), 104 Stat. 1569, 1570.  For                 
          divorces effective on or after February 3, 1991, Federal income             

               3 We note that in Fulgham v. Commissioner, docket No. 13247-           
          99S, petitioner advanced the same arguments in support of her               
          contention that the distribution she received from DFAS in 1996             
          was not includable in her gross income for that year.  However,             
          in T.C. Summary Opinion 2000-144, we held to the contrary.  In              
          the present case, respondent did not plead or otherwise invoke              
          the doctrine of collateral estoppel.  See Rule 39; Montana v.               
          United States, 440 U.S. 147, 153 (1979).  Accordingly, we do not            
          apply that doctrine.  Nevertheless, we observe that both our                
          analysis and holding in the present case are fully consistent               
          with our analysis and holding in the prior case.                            
               4 The term “court” includes any court of competent                     
          jurisdiction of any State.  10 U.S.C. sec. 1408(a)(1)(A) (1994).            





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