Kenneth E. Gilmore - Page 9

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                                     Discussion5                                      
               The issue before the Court is the proper characterization of           
          the $15,600 of petitioner’s military retirement pension paid to             
          Ms. Warriner during tax year 1999.6  Petitioner argues these                
          payments constitute deductible alimony, and respondent claims               
          these payments constitute a division of marital property.                   
               Petitioner maintains the payments represent alimony because            
          the Bankruptcy court and the Defense Finance and Accounting                 
          Service classified the payments as such.  Respondent maintains              
          that the payments represent a property settlement, and, as such,            
          the payments do not give rise to an alimony deduction.                      
          Respondent argues that a property settlement was intended by the            
          divorce court.  However, the intended purpose behind the payments           
          is not controlling.  Nelson v. Commissioner, T.C. Memo. 1998-268.           
          Further, “labels attached to payments mandated by a decree of               
          divorce or marriage settlement agreement are not controlling.”              
          Benedict v. Commissioner, 82 T.C. 573, 577 (1984).  Finally, it             
          is well settled that State courts by their decisions cannot                 

          5We decide the issue in this case without regard to the                     
          burden of proof.  Accordingly, we need not decide whether the               
          general rule of sec. 7491(a)(1) is applicable in this case.  See            
          Higbee v. Commissioner, 116 T.C. 438 (2001).                                
          6As stated previously, this issue, pertaining to                            
          petitioner’s taxable year 1996, has already been before this                
          Court.  Therefore, it appears that the doctrine of collateral               
          estoppel might apply to this case; however, respondent has not              
          raised the affirmative defense and as such is not at issue in the           
          present case.  See Rule 39.                                                 





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