Maria Antoinette Walton Mitchell and Larry G. Mitchell - Page 13

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          in computing disposable retired pay.  10 U.S.C. sec.                        
          1408(a)(4)(C) (1988 & Supp. III 1991); NDAA sec. 555(b)(3),                 
          (e)(2).  This amendment, however, is effective only for divorces            
          entered into on or after February 3, 1991, which date is after              
          both petitioner’s final judgment and the QDRO and is therefore              
          not applicable in the instant case.  10 U.S.C. sec. 1408(a)(4)(C)           
          (1988 & Supp. III 1991); NDAA sec. 555(b)(3), (e)(2).                       
               Based on the law as it was in effect on the date of                    
          petitioner’s final judgment and the date of the QDRO,                       
          petitioner’s interest is calculated on Mr. Walton’s military                
          retired pay less income taxes withheld.  As explained earlier,              
          petitioner’s interest is taxable.  Accordingly, we conclude that            
          the $4,958 received in 2000 by petitioner for her interest in Mr.           
          Walton’s military retired pay is includable in petitioners’ gross           
          income.                                                                     
               However unfair the outcome in this case may seem to                    
          petitioners, the gap in the USFSPA that this case highlights is             
          not one that can be closed by judicial fiat, and a remedy, if               
          any, must originate with Congress.                                          
               We have considered all of petitioners’ arguments, and, to              
          the extent that we have not specifically addressed them, we                 
          conclude them to be without merit.                                          
               Reviewed and adopted as the report of the Small Tax Case               
          Division.                                                                   






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