Opinion
Docket No. 26139.
1951-05-4
ROBERT K. McBERTY AND LOUISE C. McBERTY, PETITIONERS, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
David W. Richmond, Esq., for the petitioners. David F. Long, Esq., for the respondent.
David W. Richmond, Esq., for the petitioners. David F. Long, Esq., for the respondent.
ALIMONY PAYMENTS, SECTIONS 22(k) AND 23(u).
Where an agreement between spouses which respondent concedes was incident to a divorce under section 22(k) contained provision for nondeductible support payments for children as well as provision for support of the divorced wife, a question arises whether a precatory clause relating to the wife's putting aside savings out of payments makes the provision prescribing support payments for both wife and children ambiguous, so as to defeat deduction of payments for wife's support, in whole or in part, under section 23(u). Held, that no ambiguity resulted; that the clause requiring wife's support payments is controlling; that the proper construction of the clause relating to sayings provides distinction between respective rights of wife and of children in any fund which may be saved in proportion to their respective rights in total payments for their support; and that the current support payments for wife are deductible under section 23(u).
The Commissioner has determined a deficiency in the income tax of the petitioners for the years 1945 and 1946 in the amount of $459.17 and $451.67, respectively. The issue in this proceeding is whether the payments of 35 per cent of his salary made by the petitioner Robert K. McBerty to his former wife were includible in full in the income of his former wife under section 22(k), and therefore deductible by him under section 23(u).
The petitioners filed joint returns for the years in question with the collector for the tenth district of Ohio. The petitioner Louise C. McBerty is involved only because of the joint returns which were filed, and Robert K. McBerty will be referred to hereinafter as the petitioner.
FINDINGS OF FACT.
The facts which have been stipulated are so found.
On January 10, 1924, the petitioner, who is an engineer, and Mary Agatha McBerty (hereinafter referred to as ‘Mary‘) were married. Early in 1944 the petitioner and Mary decided to obtain a divorce. Their three children were 9, 7, and 3 years old, respectively, at this time. A tentative agreement in contemplation of the divorce was drawn up by the petitioner's lawyer and sent to Mary. However, Mary refused to sign it because she did not understand the legal terminology. The petitioner then prepared a typewritten agreement which he sent to Mary for her approval. After some changes were made in ink on this agreement, it was executed by the petitioner on June 14, 1944, and by Mary on July 14, 1944. The provisions of the agreement, inter alia, are as follows:
1. A. Inasmuch as it is Robert K. Mcberty's earnest intention to provide for the future comfort and security of Mary A. McBerty and their three children, he agrees to make the following payments to her as long as she shall live.
B. Mary A. McBerty shall receive, as long as she remains single, 35% (plus 5% for each of the children dependent on her) of Robert K. McBerty's salary and of dividends and rentals or other profits, derived from future gifts or inheritance, calculated before taxation. She shall pay all taxes on what money she receives.
C. If she should remarry, she shall only receive 10% of his income derived from the above sources for each of their children dependent on her, which shall be used or saved for the children, only.
D. It is herein specially stipulated that any gift or inheritance he may receive will not have to be liquidated or pass from his control. Taxes on such properties will be deducted from their dividends or rentals, before division of the latter.
E. Mary A. McBerty shall further receive in full their equity in Life Insurance; and in the property located on the Leesville Road north of Gallion, Ohio; and in the proceeds from the property sold to Carlysle of Tarentum, Pennsylvania. She shall further receive all furniture etc. in the house.
F. Robert K. McBerty shall retain the North Electric Co. stock, registered in his name, and the equity in property located south of Gallion, Ohio, and in Tarentum, Pennsylvania.
Mary A. will save, or invest in insurance, all money above $200 per month (after taxation) which she shall receive from the above sources, to be used in emergencies, & for the education of the children.
G. Mary A. McBerty shall have custody of the children, but they shall be permitted to be with their father at least twice a month, at times to be agreed upon.
The second paragraph of section 1-F was inserted in ink by the petitioner after he had sent the agreement to Mary for her approval and she had returned it to him with the query: ‘Was she supposed to save some of the money she was supposed to be getting?‘ The petitioner's intention in inserting this clause in the agreement was to suggest to and advise Mary as to the use to be made of the payments for her support and the support of the children in excess of a net amount of $200 per month because of his belief that she spent money too freely. The petitioner did not intend to impose a legal obligation on Mary to carry out a desired purpose. He intended merely to indicate to her what he considered a wise disposition of the money. After the insertion of this paragraph, the petitioner returned the agreement to Mary who thereupon signed the agreement.
On July 24, 1944, the petitioner received a divorce from Mary in the Second Judicial District Court of Nevada. The custody of the children was awarded to Mary.
During 1945 the petitioner received a salary of $12,282 from the North Electric Company. Pursuant to the agreement with Mary, he paid to her a total of $5,789. Of this amount, $1,551 was paid to Mary for the support of the three children who were in her custody. The remainder of the payments, or $4,238, was paid to Mary by the petitioner for her support in discharge of a legal obligation which had been incurred by him under a written instrument incident to their divorce.
In 1946 the petitioner received a salary of $12,500 from the North Electric Company. Pursuant to the agreement with Mary, he paid to her the total of $6,036 during 1946, of which $1,644 was paid for the support of the three children and $4,392 was paid for the support of Mary in discharge of a legal obligation which had been incurred by the petitioner under a written instrument incident to their divorce.
The petitioner has exercised no control over the payments which he made to Mary for her support, and she has spent the money as she desired.
The entire amount of the sums paid in 1945 and 1946 to Mary for her support constituted payments for her support, and no part was for the support or education of the children.
OPINION.
HARRON, Judge:
It is agreed that the instrument executed by the petitioner and his former wife was incident to their divorce and comes within the scope of section 22(k); that the payments which the petitioner was obligated to make for his wife's support, under the agreement, are deductible under section 23(u) and 22(k); and that the payments for the support of the children are not deductible.
The issue involves construction of the agreement to determine the amount of the payments for the support of the former wife for the purpose of claimed deductions under section 23(u). The petitioner paid his former wife for her support, exclusive of his payments for the support of their children, the sums of $4,238 and $4,392 in 1945 and 1946, respectively. The ultimate question is whether the entire amount of the foregoing payments is deductible in each year, or whether some part thereof represents a future allowance for the children, and is therefore not deductible.
It is concluded that the petitioner is entitled to deduct, under sections 23(u) and 22(k), the total amounts of $4,238 and $4,392 in 1945 and 1946. The respondent's determination is reversed.
The question is controlled by the provisions of subparagraph B of the agreement, and the provisions in subparagraph F must be construed by reference to subparagraph B. Under subparagraph B, the total payments of the petitioner for the support of both the divorced wife, Mary, and the children is allocable 70 per cent to Mary and 30 per cent to the children, the proportion which 35 per cent and 15 per cent bears to 100 per cent.
If subparagraph F imposes an obligation upon Mary to save everything above $200 per month out of the total net payments for the support of both herself and the children, her share of $200 is $140 (70 per cent), and the children's share is $60 (30 per cent). She will accordingly save, after taxes, the amount out of her support payments which will represent the excess over $140 per month, and she will save out of the support payments for the children the excess above $60 per month.
If and when it becomes necessary to draw upon the savings fund, her share thereof will be 70 per cent and the share of the children will be 30 per cent.
The foregoing constitutes, in our opinion, a complete answer to the respondent's concern, and shows that there is no merit in his contention. The provision in subparagraph F does not change the basic provision in subparagraph D that the indicated proportion of petitioner's total payments is for the support of his former wife. The provision in subparagraph F can be carried out by applying the arithmetic proportions which are indicated by subparagraph B.
It may be pointed out further that the evidence in this proceeding shows that the provision relating to savings in subparagraph F was intended by the petitioner to be a suggestion to Mary of the advisability of saving some part of both classes of payments for future needs. The income of the petitioner was likely to vary from year to year. If the petitioner was ill, or was out of a job, or fared poorly, the amounts of both classes of payments would diminish. It was the petitioner's intent to impress upon his divorced wife that it would be prudent for her to establish savings during years when both types of payments under the agreement were more than the total amount which he considered to be an adequate monthly allowance for the support of both herself and the children, namely, $200. The provision was in the nature of a recommendation, and it did not change the character of the payments which the petitioner was required to make under subparagraph B. See 1 Bogert, Trusts and Trustees, section 48 (1951); 1 Scott, The Law of Trusts, section 25 (1939).
Decision will be entered for the petitioners.