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The trial was conducted by Special Trial Judge Carleton D.
Powell, who died after the case was submitted. The parties have
declined the opportunity for a new trial or for supplementation
of the record and have expressly consented to reassignment of the
case for opinion and decision.
Respondent determined a deficiency of $4,916 in petitioner’s
Federal income tax for 2002. The only issue remaining for
decision is whether petitioner may deduct as alimony under
section 215(a) certain payments he made to his wife in 2002.
This requires us to decide whether the payments were made
pursuant to a written separation agreement under section
71(b)(2)(B) and, therefore, qualify as alimony as defined by
section 71(b)(1).1
Background
Most of the facts have been stipulated and are so found.
The stipulation of facts and the attached exhibits are
1In his amended petition filed in this case, petitioner, who
had filed his Federal income tax return for 2002 as “married
filing separately” asserted that he should be entitled to file an
amended joint income tax return for that year even though his
wife would not agree to sign such a return or consent thereto.
Special Trial Judge Powell ruled on that issue at trial, stating
that “you are not entitled to a joint return status. Your wife
has not joined in a joint return. That question is resolved
against you.” Moreover, if either spouse files a separate tax
return for a taxable year, sec. 6013(b)(2)(B) provides that an
election thereafter to file a joint return may not be made after
there has been mailed to either spouse, with respect to such
taxable year, a notice of deficiency under sec. 6212, if the
spouse, as to such notice, files a petition with the Tax Court
within the time prescribed in sec. 6213.
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Last modified: March 27, 2008