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Spouses’ Protection Act, Pub. L. 97-252, 96 Stat. 730 (1982).4
However, there is nothing in this statute that would have
afforded petitioner an ownership interest in the pension.
Rather, the statute merely provides that State courts are free to
treat the pension as separately held or jointly held property, as
the relevant State law provides. Pfister v. Commissioner, supra.
Furthermore, the authority found in the statute for the payment
of a portion of a retiree’s benefits to a spouse as the result of
a property settlement does not require a spouse to own an
interest in the pension before receiving such payments.
Petitioner did not have an ownership interest in the
military pension from which she received the benefits in issue.
Consequently, the benefits are properly includable in the gross
income of Mr. Newell, who initially earned the pension and who
alone had an ownership interest in the pension after the divorce.
Sec. 61(a)(11); Eatinger v. Commissioner, supra.
Respondent argues alternatively that the benefits are
includable in petitioner’s gross income as alimony pursuant to
section 71.5
4The relevant provision is codified, as amended, at 10
U.S.C. sec. 1408 (2000).
5Because the divorce decree in this case was entered prior
to 1985, we apply the provisions of sec. 71 which were applicable
before the changes made by the Deficit Reduction Act of 1984
(DEFRA), Pub. L. 98-369, sec. 422(e), 98 Stat. 798. We note that
the amount of the spousal support payments required by the
(continued...)
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