Phyllis Herrmann Witcher - Page 8




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          income from the retiree’s employer.  Eatinger v. Commissioner,              
          supra.  The pension distributions that petitioner received                  
          directly from DFAS represent a division of a military pension.              
               If we were to assume, arguendo, that the division of the               
          military pension effected a transfer of property to petitioner              
          subject to section 1041, petitioner has no basis in such                    
          property, and thus the full amount of the pension distribution to           
          her is includable in her income.  Sec. 1041(b).                             
               The case at hand can be distinguished from Balding v.                  
          Commissioner, 98 T.C. 368 (1992), in which this Court determined            
          that payments to the taxpayer, a former spouse of a retired                 
          military serviceman, were transfers incident to a divorce under             
          section 1041, and income was not recognized by the taxpayer.  In            
          Balding, the taxpayer received cash payments directly from her              
          former spouse in consideration of her agreement to relinquish all           
          claims to the former spouse’s military retirement pay.  Id. at              
          369.  The Court viewed the taxpayer’s release of rights to the              
          military retirement pay in exchange for the settlement payments             
          as a transfer of property.  Id. at 373.                                     
               Petitioner, in contrast, received distributions from the               
          DFAS as a result of her retained ownership interest in her former           
          spouse’s military pension.  Sec. 61(a)(11).  We conclude that the           
          distributions to petitioner in 1998 from the military pension are           
          includable in her gross income.  See Eatinger v. Commissioner,              






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