John Michael Dunkin - Page 12

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          Stenquist, supra.  Just as the rights of divorced spouses under             
          California law do not depend on the form of the payments to the             
          employee spouse, neither should the Federal taxation of those               
          rights.  Generally speaking, money is fungible.  See United                 
          States v. Sperry Corp., 493 U.S. 52, 62 n.9 (1989); Berry                   
          Petroleum Co. v. Commissioner, 104 T.C. 584, 643 n.37 (1995),               
          affd. without published opinion 142 F.3d 442 (9th Cir. 1998).               
          Because of the fungibility of money, we did not know whether the            
          employee spouse in Eatinger paid the nonemployee spouse from his            
          retirement benefits or from other funds.  Similarly, whether                
          petitioner paid his former spouse from current wages or                     
          retirement benefits is not determinative here.  See Taylor v.               
          Campbell, 335 F.2d 841, 844-845 (5th Cir. 1964) (the source of an           
          otherwise deductible payment will not affect its deductibility              
          when proceeds from a property division in a divorce are used to             
          pay alimony); Benedict v. Commissioner, 82 T.C. 573, 579 (1984)             
          (quoting and applying Taylor v. Campbell, supra).                           
          C.   Whether Petitioner’s Position Violates Assignment of Income            
               Principles                                                             
               Respondent contends that the $25,511 petitioner paid to his            
          former spouse was an assignment of income that was taxable to               
          petitioner under Lucas v. Earl, supra.  In Lucas v. Earl, supra             
          at 114-115, the U.S. Supreme Court disregarded for Federal income           
          tax purposes an agreement between a husband and wife to share               
          equally in the income each received.  A holding for the taxpayers           





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