Paul Edwin Farrow - Page 5

                                        - 4 -                                         
               The Commissioner’s determinations in the notice of                     
          deficiency generally are presumed correct, and the burden of                
          proving an error is on the taxpayer.4  Rule 142(a); Welch v.                
          Helvering, 290 U.S. 111, 115 (1933).  In general, a payor spouse            
          may deduct alimony payments but may not deduct child support                
          payments.  See secs. 71(b) and (c), 215(a) and (b).  Section                
          71(c)(3) provides a special rule where the amount of the child              
          support payment is less than the amount specified in the order:             
          “if any payment is less than the amount specified in the                    
          instrument, then so much of such payment as does not exceed the             
          sum payable for support shall be considered a payment for such              
          support.”  See also Hazam v. Commissioner, T.C. Memo. 2000-71.              
               In the instant case, the March 1999 order required                     
          petitioner to pay his former spouse each month $977 for child               
          support, $471 for spousal support, and $25 for child care                   
          expenses.  The instructions limited the amount that could                   
          actually be garnished from petitioner’s military retirement                 
          account to approximately $441.  However, the instructions also              
          stated that payments for child support are given priority over              
          payments for spousal support where the garnishment is                       

               4Sec. 7491(a) does not apply in the instant case to shift              
          the burden of proof to respondent because petitioner did not                
          raise the issue and also did not comply with the substantiation             
          and record keeping requirements of sec. 7491(a)(2).                         

Page:  Previous  1  2  3  4  5  6  Next

Last modified: May 25, 2011