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$6,373.56 for the 2000 taxable year. Respondent disallowed the
deduction of $24,424 as alimony payments.2
Petitioner contends that the unallocated support payments
made pursuant to the pendente lite order constitute “alimony or
separate maintenance [payments]” under section 71(b), because,
under New Jersey law, the hypothetical death of Ms. Peterson
would relieve him of any further obligation to make the
unallocated support payments when he has joint custody of his two
minor children. Respondent disagrees that the death of Ms.
Peterson would result in such relief, citing Gonzales v.
Commissioner, T.C. Memo. 1999-332.3
Discussion
Petitioner filed his 2000 tax return on April 15, 2001,
accordingly section 7491(a) is applicable in the instant case.
However, neither party takes a position as to whether the burden
of proof has shifted to respondent under section 7491(a). We
conclude that resolution of the issue whether unallocated support
payments constitute alimony or separate maintenance payments does
not depend upon who has the burden of proof.
2 The notice of deficiency also contains an adjustment of
$717 to the amount of itemized deductions claimed by petitioner
in his 2000 tax return. This adjustment, which is computational
in nature, stems from respondent’s disallowance of petitioner’s
claimed deduction for alimony paid.
3 Neither party cited Kean v. Commissioner, T.C. Memo.
2003-163. We note that Kean was decided on June 4, 2003, after
this case was submitted.
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