Opinion
Docket No. 40559.
1953-11-30
MARGARET RICE SKLAR, PETITIONER, v. COMMISSIONER OF INTERNAL REVENUE, RESPONDENT.
Leon A. Cousens, Esq., for the petitioner. Robert J. Fetterman, Esq., for the respondent.
Leon A. Cousens, Esq., for the petitioner. Robert J. Fetterman, Esq., for the respondent.
A document entitled ‘decree‘ was entered and filed in the divorce proceedings between petitioner and her husband. The document so designated provided that the husband pay a single sum therein designated ‘permanent alimony‘ for the support of petitioner and the minor child of the parties. Several amending orders were entered from time to time thereafter modifying the amount to be paid. The amending orders also referred to the periodic payments as ‘permanent alimony‘ and made no allocation of the sums so paid to support of the minor child. The State court's final decree and the amendatory orders were not correctly expressed in the documents filed for entry of its decisions. It entered its order nunc pro tunc correcting its decree and amendatory orders of record. The actual decree and amendatory decisions provided for application of the full amount of the periodic payments to support of the child. Held, amounts paid petitioner, being solely for support of the minor child, are not includible in her income.
The Commissioner determined a deficiency in the income tax of Margaret Rice Sklar for the year 1949 in the sum of $189.60 and for the year 1950 in the sum of $168.30. The sole question for our determination is whether the Commissioner erred in including in the income of petitioner sums paid during said years by her husband under and by virtue of the terms of a divorce decree which was subsequently reformed by an order of the issuing court entered nunc pro tunc.
FINDINGS OF FACT.
All of the facts have been stipulated and are so found.
Margaret Rice Sklar, the petitioner, filed her Federal income tax returns for the taxable years 1949 and 1950 with the collector of internal revenue for the district of Michigan at Detroit, Michigan. On April 16, 1940, a decree of divorce from her husband was granted petitioner by the Circuit Court for the County of Wayne, State of Michigan, in Chancery, said decree having been rendered by The Honorable Arthur Webster, Circuit Judge. The decree contained, inter alia, the following paragraph:
ALIMONY
AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant, Joseph A. Sklar, pay each week hereafter the sum of Seven ($7,00) Dollars as permanent alimony for the support of said plaintiff and their child.
On November 27, 1942, after the filing in said court of a petition by petitioner for an increase in the support money for the child provided in the original decree, said court entered an order amending the decree in accordance therewith in the following terms:
IT IS ORDERED, ADJUDGED AND DECREED that the decree heretofore entered in this Court and cause be, and the same hereby is modified by the increasing of permanent alimony from seven ($7.00) dollars a week to ten ($10.00) dollars a week.
On September 29, 1947, the court entered an order again modifying the decree upon request of the petitioner ‘that an order may be entered in this Court and cause requiring the defendant to pay fifty ($50.00) dollars per week for the use and support of said minor child as representing an amount consistent with the defendant's station in life.‘ The order of the court amending the decree was couched in the same terms as the amending order entered November 27, 1942, but increased the amount to be paid by defendant to $25 per week. On March 10, 1949, the petitioner's former husband filed an application for a reduction in the amount of the support money theretofore ordered. No disposition of the latter petition for amendment is disclosed. On February 7, 1952, at the request of petitioner and her former husband, and on their written stipulation, the divorce court made and entered the following order:
STATE OF MICHIGAN
IN THE CIRCUIT COURT FOR THE COUNTY OF WAYNE
IN CHANCERY
MARGARET SKLAR,
PLAINTIFF,
v. No. 295,082
JOSEPH A. SKLAR,
DEFENDANT.
REFORMATION OF DECREE
NUNC PRO TUNC
At a session of said Court, held in the Wayne County Building, in the City of Detroit, County of Wayne, State of Michigan, on this 7th day of February, A.D. 1952;
Present:
Honorable ARTHUR WEBSTER Circuit Judge
It appearing to this Court from the petition filed by the plaintiff on October 29, 1951 and upon appropriate stipulation between the parties, that the Decree of divorce granted by this Court on April 16, 1940 and the several orders modifying said Decree entered thereafter have all provided for the payment by the defendant of certain sums of money ‘for the support of plaintiff and their child‘;
And it further appearing that it was never contemplated by any of the parties or by the Court that any part of said sum should be for the support of the plaintiff, but that on the contrary the entire sum should be for the support of the child;
And it further appearing that the several sums of money paid by the defendant to the plaintiff pursuant to said Decree and the several modifications thereof have at all times been used exclusively for the support of said child, KAREN DIANNE SKLAR, and the Court being fully advised in the premises;
IT IS HEREBY ORDER, (sic) ADJUDGED AND DECREED that said Decree dated April 16, 1940 be, and the same hereby is reformed by deleting from the paragraph entitled ‘ALIMONY‘ the language ‘of the said plaintiff and‘, so that said paragraph, as reformed be deemed, nunc pro tunc, to read:
‘AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the defendant JOSEPH A. SKLAR, pay each week hereafter the sum of seven ($7.00) dollars for the support of their child, KAREN DIANNE SKLAR.‘
And IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the modification of said decree dated November 27, 1942 be, and the same hereby is reformed so as to read, nunc pro tunc, as follows:
‘IT IS ORDERED, ADJUDGED AND DECREED that the Decree heretofore entered in this Court and cause be, and the same is hereby modified by the increasing of the sum to be paid by the said defendant for the use and support of the said child, KAREN DIANNE SKLAR, from seven ($7.00) dollars a week to ten ($10.00) dollars a week.‘
AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the modification dated September 29, 1947 be reformed by changing the second paragraph thereof, nunc pro tunc, to read:
‘IT IS ORDERED, ADJUDGED AND DECREED that the modification heretofore entered in this Court and cause be, and the same is hereby modified by the increasing of the sum to be paid by said JOSEPH A. SKLAR for the support of the said child, KAREN DIANNE SKLAR, from ten ($10.00) dollars per week to twenty-five ($25.00) dollars per week,‘ (and the remainder of said paragraph to remain unchanged).
AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the modification of said Decree dated June 16, 1949 be, and the same hereby is reformed by substituting the following, nunc pro tunc, in the place and stead of the paragraph captioned ‘ALIMONY‘:
‘AND IT IS FURTHER ORDERED, ADJUDGED AND DECREED that commencing April 22, 1949 and each week thereafter, the defendant shall pay the sum of eighteen ($18.00) dollars for the support of said child.
(Signed) ARTHUR WEBSTER, Circuit Judge A TRUE COPY EDGAR M. BRANIGIN, Clerk Deputy Clerk
Pursuant to the statutes of the State of Michigan, in such case made and provided, an investigating officer, known and designated as the friend of the court, made an investigation and filed his recommendations with the court prior to the granting of the decree and each amendment thereto with the exception of the final order last above quoted. The friend of the court's investigation and recommendation under Michigan statutes is required to be filed with the divorce court prior to the entry of any final decree of divorce or any amendment thereto which might affect the welfare of minor children of the parties. The recommendations filed by the friend of the court in the instant case were in each instance favorable to the modification of the decree prayed for.
In her income tax returns for the taxable years 1949 and 1950 petitioner did not include as income any sums paid to her under the terms of the divorce decree, or amendments thereto, herein set forth. In determining the aforesaid deficiencies in income tax against the petitioner the respondent has included such sums in petitioner's income for the respective years.
OPINION.
WITHEY, Judge:
Examination of all of the facts persuades us that the final decree of the state court upon the hearing of the divorce case between petitioner and her husband, and each of the amendatory orders thereafter which had to do only with the amounts to be paid petitioner, provided that the entire sum here in controversy was for the support of the child alone and not in any part for the support of petitioner. The original order and the orders amendatory thereof were in error in stating otherwise, and the last order of the court merely corrected that error. In this respect this case is distinguishable from Peter Van Vlaanderen, 10 T.C. 706, affd. 175 F.2d 389.
Reviewed by the Court.
Decision will be entered for the petitioner.