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under section 215 for the payments made under paragraph 3b of the
Amended Order.
2. Exclusion of Military Retirement Pension Paid to Ms. Warriner
Having concluded that the amounts paid to Ms. Warriner
pursuant to paragraph 3b of the Amended Order are not deductible
under section 215 as alimony, we now turn to whether these
amounts are excludable from petitioner’s income. Gross income
includes payments from military retirement pensions. Sec.
61(a)(11). However, it “is axiomatic in Federal tax law that
income is taxable to the legal owner of the * * * property
producing the income.” Miles Prod. Co. v. Commissioner, T.C.
Memo. 1969-274, affd. 457 F.2d 1150 (5th Cir. 1972); see also
Helvering v. Clifford, 309 U.S. 331 (1940). Military retirement
payments are “gross income to the party who owns the right to
those payments pursuant to the division of property in a
divorce.” Pfister v. Commissioner, T.C. Memo. 2002-198, affd.
359 F.3d 352 (4th Cir. 2004); see also Weir v. Commissioner, T.C.
Memo. 2001-184; Eatinger v. Commissioner, T.C. Memo. 1990-310;
Lowe v. Commissioner, T.C. Memo. 1981-350. Thus, we must
determine whether petitioner or Ms. Warriner owns the right to
the payments of petitioner’s military retirement pension.
Pursuant to the USFSPA, State courts “may treat disposable
retired pay payable to a member * * * either as property solely
of the member or as property of the member and his spouse in
accordance with the law of the jurisdiction of such court.” 10
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