Marsha K. Huggins - Page 9




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          amounts received as retired pay for service in the uniformed                
          services."                                                                  
               The above referenced language of the Act leads to the                  
          conclusion that although a State court "may treat disposable                
          retired pay payable to a member" as property of the member and              
          his spouse for State law purposes, the retired pay is that of the           
          member.  The Act itself does not give the former spouse an                  
          interest in the retired pay.  Here, the court ordered payments to           
          petitioner out of the disposable retired pay of her former                  
          spouse.  The decree did not, and could not, make her the                    
          recipient of "retired pay".  See 10 U.S.C. sec. 1408(c)(1) and              
          (2) (1994).  Petitioner received a division of property in the              
          form of monthly payments.  This was not a taxable event.  See               
          sec. 1041.                                                                  
              As Oregon is not a community property State,4 the decree               
          here did not have the effect of dividing a preexisting community            
          ownership of the retired pay of petitioner's former spouse.  See            
          Powell v. Commissioner, 101 T.C. 489, 497-499 (1993); Darby v.              
          Commissioner, 97 T.C. 51, 67 (1991).  Because the retired pay,              
          out of which petitioner received her payments, is that of                   
          petitioner's former spouse, he remains taxable on his retired               




               4See, e.g., Swan v. Swan, 720 P.2d 747, 752 (Or. 1986); Wood           
          v. Wood, 676 P.2d 338, 340 (Or. Ct. App. 1984).                             





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