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659(a), which does not provide for the actual transfer of
petitioner’s military retirement pension. Without a property
division pursuant to a dissolution proceeding, petitioner is the
sole owner of his military retirement pension. See Pfister v.
Commissioner, supra (former wife “shall be owner of, and receive,
one-half of husband’s disposable retired or retainer pay”);
Porter v. Commissioner, T.C. Memo. 1996-475 (former wife received
“as her sole and separate property” one-half “of the Air Force
Retiree Monthly Pay”); Lowe v. Commissioner, supra (former wife
awarded portion of military retirement pension “as a property
interest” with full “property interest(s) * * * permissible by
law”). We hold petitioner may not exclude from income the
amounts paid to Ms. Warriner pursuant to paragraph 3b of the
Amended Order.
3. Addition to Tax Under Section 6651(a)(1) for Failure To File
If a Federal income tax return is not timely filed, an
addition to tax will be assessed “unless it is shown that such
failure is due to reasonable cause and not due to willful
neglect”. Sec. 6651(a)(1). A delay is due to reasonable cause
if “the taxpayer exercised ordinary business care and prudence
and was nevertheless unable to file the return within the
prescribed time”. Sec. 301.6651-1(c)(1), Proced. & Admin. Regs.;
see also United States v. Boyle, 469 U.S. 241, 243 (1985).
Respondent’s records reflect petitioner filed his return on
December 19, 2001, and we conclude petitioner filed on that date.
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