- 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).Page: Previous 1 2 3 4 5 6 7 8 9 Next
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