124 T.C. No. 10
UNITED STATES TAX COURT
JOHN MICHAEL DUNKIN, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 4448-03. Filed March 31, 2005.
Petitioner (P), who was divorced, was entitled to
retire and receive pension payments. If P had retired,
his former spouse would have been entitled under
California community property law to receive an amount
from P equal to one-half of his pension. However, P
continued working, delaying his receipt of pension
benefits. During the years P continued working, P’s
former spouse was entitled under California community
property law to receive a monthly payment from P equal
to one-half of the pension benefit which P had earned
during their marriage and which P would have received
if he had retired on the date of their divorce.
Held, P’s gross income from his continued
employment, which he received in lieu of retirement
benefits, does not include the amount of payments to
which his former spouse was entitled under California
community property law on the basis of the pension
earned by P.
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