Barbara E. Seaman - Page 12




                                       - 12 -                                         
               The United States Court of Appeals for the Fourth Circuit              
          (Court of Appeals), in which an appeal in this case would nor-              
          mally lie, and this Court have addressed the precise issue                  
          presented here.  Pfister v. Commissioner, 359 F.3d 352 (4th Cir.            
          2004), affg. T.C. Memo. 2002-198.  In Pfister v. Commissioner,              
          359 F.3d 352, the taxpayer took substantially the same position             
          that petitioner takes here.  The taxpayer maintained there that             
          the term “disposable retired pay” used in the divorce decree in             
          question was calculated after tax was withheld and that therefore           
          the taxpayer should not be taxed upon the amount of such dispos-            
          able retired pay to which the taxpayer was entitled under that              
          divorce decree.  In rejecting the taxpayer’s position, the Court            
          of Appeals stated:                                                          
               Pfister does not contend that her ex-husband’s military                
               retirement pay is not a pension; rather, based upon                    
               Pfister’s flawed interpretation of the * * * definition                
               of “disposable retired pay” Pfister contends that she                  
               is statutorily entitled to her portion of her former                   
               husband’s retirement pay without any tax liability.                    
               Pfister’s argument is without merit.                                   
                     *      *      *      *      *      *      *                      


               5(...continued)                                                        
          percent of Mr. Seaman’s post-amendment disposable retired pay,              
          rather than 50 percent of Mr. Seaman’s pre-amendment disposable             
          retired pay.  Resolution of petitioner’s contention is not                  
          material to our resolution of the issue presented.  In any event,           
          that contention is rejected by the DFAS notice that petitioner              
          received in the fall of 1992.  That notice stated in pertinent              
          part:  “No change is required in the computation of the amount              
          due the former spouse, taxes are still allowed as a deduction               
          before dividing the retired pay.”                                           






Page:  Previous  5  6  7  8  9  10  11  12  13  14  15  16  17  18  19  Next 

Last modified: November 10, 2007