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
To reflect the foregoing,
An appropriate decision will
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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Last modified: November 10, 2007