- 41 -
entitled to a deduction for alimony in excess of the amount
claimed on his 1999 return and disallowed by respondent ($50,528),
nor did he move for leave to amend the petition to include such a
claim. See Rule 41(a). Normally, we do not consider issues not
raised in the pleadings. E.g., Christensen v. Commissioner, T.C.
Memo. 1996-254 n.1, affd. without published opinion 142 F.3d 442
(9th Cir. 1998); see Rule 34(b)(4). However, the parties’
stipulations reflect both the claim for an increased deduction
($54,110) and the basis for that claim (i.e., the amounts paid to
Drs. Caffaro and Murphy), and respondent addressed the issue in
his reply brief. Accordingly, we shall treat petitioner’s claim
for an increased alimony deduction as having been tried by consent
of the parties. See Rule 41(b); see also Certified Grocers of
Cal., Ltd., v. Commissioner, 88 T.C. 238, 246 n.17 (1987)
(application of Rule 41(b) in the context of a fully stipulated
case).
2. Substantive Analysis
The record reveals no factual predicate for petitioner’s
claim that his payments to Drs. Caffaro and Murphy in 1999 ($4,188
+ $114 = $4,302) qualify as deductible alimony. In order so to
qualify, such payments would have to have been made “under a
divorce or separation instrument”. Sec. 71(b)(1)(A); see sec.
71(b)(2). Neither the dissolution judgment, the 1999 order, nor
any other document contained in the record (including the parties’
stipulations) reveals any obligation of petitioner to make
Page: Previous 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 NextLast modified: May 25, 2011