- 4 -
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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