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Discussion
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).
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Last modified: May 25, 2011