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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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