Maria Antoinette Walton Mitchell and Larry G. Mitchell - Page 10

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          her interest.  Petitioners contend, however, that the payments              
          petitioner received for her interest in Mr. Walton’s military               
          retired pay are not subject to income tax pursuant to the QDRO              
          and pursuant to statements allegedly made by the superior court             
          judge.11  Petitioners’ contentions are misplaced.                           
               Petitioners assert that the QDRO states that “taxes shall be           
          taken out of ex-spouse’s allotment before Maria’s [petitioner’s]            
          share of allotment is given”.  In essence, petitioners’ assertion           
          is consistent with the operative language of the QDRO.  The QDRO            
          awarded petitioner as her sole and separate property a one-half             
          interest in the community property interest in Mr. Walton’s “net            
          disposable military retirement pay”.  The QDRO defined “net                 
          disposable military retirement pay” as “the net after deducting             
          * * * properly deducted Federal, State and [sic] income taxes”.             
          This definition is consistent with the plain language of 10                 
          U.S.C. sec. 1408(a)(4)(C) (1988), as it was in effect when the              
          superior court entered both the final judgment and the QDRO.  See           
          id. (disposable military retired pay is defined as the total                
          monthly retired pay less, inter alia, properly withheld Federal,            
          State, and local income taxes).  Clearly, the QDRO directed that            

               11  Petitioners also contend that they have never reported             
          such payments on their tax returns since 1991 and that they never           
          received anything from the IRS until the 2000 audit.  We note               
          that each tax year stands on its own and that the Commissioner              
          may challenge in a succeeding year what was overlooked or                   
          condoned in previous years.  Rose v. Commissioner, 55 T.C. 28,              
          31-32 (1970).                                                               





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