Earl R. and Mary A. Palmer - Page 9




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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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