Maria Antoinette Walton Mitchell and Larry G. Mitchell - Page 7

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          Discussion8                                                                 
               It is a well-settled principle that State law determines the           
          nature of the property interest created while Federal law governs           
          the Federal taxation of that property interest.  United States v.           
          Mitchell, 403 U.S. 190 (1971).  Furthermore, the tax liability              
          for income from property attaches to the owner of such property.            
          Eatinger v. Commissioner, T.C. Memo. 1990-310 (citing Helvering             
          v. Clifford, 309 U.S. 331, 334 (1940); Blair v. Commissioner, 300           
          U.S. 5, 12 (1937); Poe v. Seaborn, 282 U.S. 101 (1930); Lucas v.            
          Earl, 281 U.S. 111 (1930)).                                                 
               In 1982, the Congress enacted the Uniformed Services Former            
          Spouses’ Protection Act (USFSPA), Pub. L. 97-252, sec. 1002, 96             
          Stat. 730, which added section 1408 to title 10 of the United               
          States Code (hereinafter 10 U.S.C. sec. 1408).9  Under 10 U.S.C.            
          sec. 1408(c)(1) (2000), a State court may treat disposable                  
          military retired pay in a divorce proceeding either as property             
          solely of the servicemember or as property of the military                  
          retiree and his or her spouse in accordance with the law of the             


               8  We decide the issue in this case without regard to the              
          burden of proof under sec. 7491(a) because the issue is                     
          essentially one of law.                                                     
               9  The USFSPA reversed the decision of the U.S. Supreme                
          Court, which held that a State court could not order a division             
          of nondisability military retired pay as part of a distribution             
          of community property in divorce proceedings.  See McCarty v.               
          McCarty, 453 U.S. 210 (1981).                                               





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