- 6 - 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).Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
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