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total monthly retirement pay to which a member is entitled less,
among other items, amounts properly withheld for Federal, State,
or local income taxes. 10 U.S.C. sec. 1408(a)(4)(C) (1988).5
Because the Court's authority under 10 U.S.C. section 1408(c)(1)
to divide a community military retirement pension is limited to
the amount that is net of income taxes, all income tax withheld
is attributable to the service member spouse, which, in this
case, is Mr. Simon. Eatinger v. Commissioner, supra. If
petitioner has any remedy with respect to the taxes that were
withheld out of that portion of the retirement of Mr. Simon that
was allotted to her in the community property settlement, that
remedy is not in this Court. Respondent, therefore, is sustained
in this case.
Reviewed and adopted as the report of the Small Tax Case
Division.
Decision will be entered
for respondent.
5 For divorces effective on or after Feb. 3, 1991,
Federal, State, and local income taxes are not excluded from the
total monthly retired pay when determining the disposable retired
pay. 10 U.S.C. sec. 1408(a)(4) (1994); National Defense
Authorization Act for Fiscal Year 1991, Pub. L. 101-510, sec.
555(b)(3) and (e)(2), 104 Stat. 1569, 1570. The divorce in this
case became effective in 1977.
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