Neil Jerome Proctor - Page 9




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          or interest which can be sold, assigned, transferred, or                    
          otherwise disposed of (including by inheritance) by a spouse or             
          former spouse”.  10 U.S.C. sec. 1408(c)(2)(2000).  Petitioner has           
          no liability to make such retirement payments after the death of            
          Ms. Holdman.  Thus, the retirement payments meet the requirements           
          of section 71(b)(1)(D).                                                     
               The retirement payments meet the requirements of section               
          71(b)(1), and pursuant to section 215, petitioner is entitled to            
          a deduction of $3,387 for alimony payments.3                                
               Contentions we have not addressed are irrelevant, moot, or             
          meritless.                                                                  
               To reflect the foregoing,                                              
                                               An appropriate decision will           
                                           be entered.                                






               3 In Eatinger v. Commissioner, T.C. Memo. 1990-310, Witcher            
          v. Commissioner, T.C. Memo. 2002-292, and Pfister v.                        
          Commissioner, 359 F.3d 352 (4th Cir. 2004), affg. T.C. Memo.                
          2002-198, the Court treated military retirement payments as                 
          property taxable to the former spouse.  In those cases, the Court           
          concluded that the payments were includable in the former                   
          spouse’s gross income pursuant to sec. 61(a)(11), but did not               
          address whether the payments qualified as alimony, pursuant to              
          sec. 71.  Conversely, in Baker v. Commissioner, T.C. Memo. 2000-            
          164, the Court agreed with respondent that the military                     
          retirement payments received by a former spouse qualified as                
          alimony, pursuant to sec. 71.                                               







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