John Michael Dunkin - Page 11

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          contrary to the assignment of income doctrine; and (c) the result           
          in this case is determined by section 402 and the QDRO rules.               
          B.   Whether the Fact That Petitioner Was Not Yet Receiving                 
               Pension Benefits Means He Is Taxable on Payments He Made to            
               His Former Spouse on Account of Her Community Property                 
               Rights in His Pension                                                  
               Respondent contends that the fact that petitioner was not              
          yet receiving pension benefits means he is taxable on payments he           
          made to his former spouse on account of her community property              
          rights in his pension.                                                      
               The employee spouse in Eatinger v. Commissioner, supra, was            
          ordered to pay to his former spouse an amount equal to one-half             
          of his pension payments because his pension was community                   
          property.  See In re Marriage of Brown, 544 P.2d 561 (Cal. 1976).           
          That was also why petitioner was ordered to pay an amount equal             
          to one-half of the pension he would have received if he had not             
          elected to continue working past the date of his divorce.  See In           
          re Marriage of Gillmore, supra at 6.                                        
               Respondent contends that cases relating to the taxation of             
          community property, such as Poe v. Seaborn and Eatinger, do not             
          apply here because petitioner’s postdivorce wages are not                   
          community property.  We disagree.  Respondent’s argument                    
          overlooks the fact that California community property rights do             
          not depend on the form of the payments received by the employee             
          spouse or the source of the payments to the former, nonemployee             
          spouse.  In re Marriage of Gillmore, supra; In re Marriage of               





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