SCHILLING v. COMMISSIONER OF INTERNAL REVENUE
T.C. Memo. 2012-256
United States Tax Court.
Filed September 5, 2012.
Decision will be entered for respondent.
1. Petitioner's first two children are older and are not involved in any way in this case. Although the parties stipulated that child A was a minor at the time of petitioner's divorce from her ex-husband, the record indicates that child A had reached Ohio's age of majority of 18 years. See Ohio Rev. Code Ann. sec. 3109.01 (LexisNexis 2008). This distinction is immaterial for our purposes herein.
2. Petitioner argues the application of the so-called taint test under the Commissioner's temporary regulations—described in some detail in the BNA "Separation and Divorce" Tax Management portfolio—supports the applicability of sec. 71(c)(2)(B) to the "fourth reduction in spousal support" at issue herein. See Cindy Lynn Woffard, Divorce and Separation, 515-2d Tax Mgmt. (BNA), at A-18-A-20. That portfolio, however, notes in particular that "[i]t is not clear how the * * * [taint test] is to be applied if there are three or more reductions due to the existence of three or more children." As respondent notes on brief, in the examples of the taint test found in the BNA portfolio, the number of reductions that are tested under the above-cited temporary regulations always matches the number of minor children of the taxpayer. It appears that the amount of spousal support payments remaining after all child-related reductions are taken into account is not considered to be child support, and the so-called taint test is not applicable to that amount.