- 6 - alimony only if all four requirements of section 71(b)(1) are present. See Jaffe v. Commissioner, T.C. Memo. 1999-196. Payments not made under a divorce or separation instrument may not be deducted by the payor spouse. See Taylor v. Commissioner, 55 T.C. 1134, 1138 (1971). We decide the instant case on the record without regard to the burden of proof or section 7491. Petitioner contends that his payments to his thrift savings plan are deductible for the following reasons: From the divorce instrument, the Thrift Savings Plan (TSP) portion of petitioner’s retirement was composed of a deferred compensation of $88,487.21 with a loan payoff debt of $25,041.75. The court allotted fifty percent interest [sic] in the deferred compensation plan to spouse/former spouse. Clearly this represents $44,243.60 of deferred compensation with $12,520.88 of loan payoff debt that are spouse/former spouse’s interest. * * * * * * When deferred compensation is withdrawn from a deferred compensation plan it is taxable income in the year it is withdrawn. * * * $44,243.60 being deferred compensation, when withdrawn must be reported on former spouse’s tax return. $12,520.88 going to pay a loan would be considered a withdrawal of deferred compensation for income tax purposes. The divorce instrument does direct petitioner to pay off the loan portion. The petitioner is the only person eligible to payoff the debt according to TSP rules. Therefore transfer of the former spouse’s portion of the loan is only accomplished through payments of the petitioner. The former spouse’s debt is being paid off and these payments are a form of income to the former spouse. I.R.C. Section 71(b)(1) provides that “the term ‘alimony or separate maintenance payment’ means ‘any payment’ in cash if such payment is received by (or on behalf of) a spouse under a divorce or separation instrument.” Were it not for the divorce instrumentPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: May 25, 2011