- 8 - 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.Page: Previous 1 2 3 4 5 6 7 8 9
Last modified: May 25, 2011