Maria Antoinette Walton Mitchell and Larry G. Mitchell - Page 9

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          Marriage of Brown, 544 P.2d 561, 563 (Cal. 1976).  Accordingly,             
          where California law applies, each spouse has a one-half interest           
          in military retirement benefits earned during marriage.                     
               As a general rule, the Internal Revenue Code imposes a tax             
          on the taxable income of every individual.  See sec. 1.  For                
          purposes of calculating taxable income, section 61 defines gross            
          income as “all income from whatever source derived” unless                  
          otherwise specifically excluded.  Sec. 61.  Gross income                    
          specifically includes amounts derived from pensions.  Sec.                  
          61(a)(11).  Military retired pay constitutes a pension within the           
          meaning of that section.  See Eatinger v. Commissioner, supra (“A           
          military retirement pension, like other pensions, is simply a               
          right to receive a future income stream from the retiree’s                  
          employer.”); sec. 1.61-2(a)(1), Income Tax Regs.; sec. 1.61-                
          11(a), Income Tax Regs. (“Pensions and retirement allowances paid           
          either by the Government or by private persons constitute gross             
          income unless excluded by law.”); see also 31 U.S.C. sec.                   
          9502(1)(B)(x) (1994) (“Military Retirement System” is a                     
          Government pension plan); 10 U.S.C. 1461(a) (2000) (defining the            
          Department of Defense Military Retirement Fund).                            
               Petitioners do not dispute that the superior court awarded             
          petitioner a community property interest in Mr. Walton’s military           
          retired pay, and that petitioner received in 2000 total payments            
          of $4,958, with zero Federal income tax withheld, from DFAS for             






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