Before MCLAUGHLIN, KALODNER and STALEY, Circuit Judges.
Does a "support and maintenance" order of a Quarter Sessions Court of Pennsylvania entered against a husband at his wife's instance, effect their "legal separation" under Pennsylvania law?
The question is presented by these petitions for review of decisions of the Tax Court of the United States which answered them in the negative. It arises by reason of the fact that applicable Federal revenue laws*fn1 provide that "periodic payments" to a wife "who is divorced or legally separated from her husband under a decree of divorce or of separate maintenance" shall be includible in the wife's gross income and not that of the husband.
The facts, as stipulated and found by the Tax Court, may be summarized as follows:
Robert L. Rankin and Bessie N. Rankin were married on October 2, 1919. Bessie left Robert on August 16, 1951 and they have lived separate and apart since that date. They never entered into a separation agreement nor did either of them ever institute divorce proceedings. On October 19, 1951 Bessie instituted an action for support against Robert in the Court of Quarter Sessions of Delaware County, Pennsylvania, pursuant to the provisions of the Pennsylvania Act of June 24, 1939, P.L. 872 § 733, 18 P.S. § 4733. The Delaware County Court the same day ordered Robert to pay $125.00 weekly to Bessie for her support and maintenance.*fn2
During the taxable years involved, 1952, 1953 and 1954, Robert made the payments ordered to Bessie and in his individual income tax returns for the years stated deducted them from his gross income. The Commissioner disallowed the deductions with respect to each year and his action was sustained by the Tax Court. Bessie, in her individual income tax returns for the years involved, did not include in her gross income the support payments made by Robert, but the Commissioner did. The Tax Court held that the support payments were includible in Robert's gross income and that the Commissioner erred in including them in Bessie's gross income.
Robert's petition for review relates to the Tax Court's decision in his case.*fn3 The Commissioner's protective petition for review of the Tax Court's decision in Bessie's case*fn4 was filed to protect the revenue in the event this Court should reverse in Robert's case inasmuch as the support payments are necessarily taxable to Bessie if they are deductible by Robert.
The sum of Robert's contention here is that the Pennsylvania Quarter Sessions Court's Order effected a "legal separation" and constituted a "decree of separate maintenance" within the meaning of the applicable federal revenue laws. Its premise is that the Quarter Sessions Court, in granting the order, found that Bessie "* * * was justified in separating herself from her husband because of his mistreatment and abuse", and that it follows that the separation thereby became a "legal separation."
We cannot subscribe to Robert's contention.
As earlier stated, Bessie's action for support in the Delaware County Quarter Sessions Court was pursuant to the provisions of Section 733 of the Pennsylvania Penal Code of June 24, 1939.
The law is well-settled in Pennsylvania that in support actions under the Penal Code, and predecessor legislation, "Maintenance is the sole object of the act [Act]".*fn5 As was stated in Commonwealth ex rel. Rankin v. Rankin, 1952, 170 Pa. Super. 570, 572, 87 A. 2d 799, 800, where the order of the Quarter Sessions Court was affirmed:
"The function of a court in a proceeding for support such as this is * * * to fix an amount which is 'reasonable and proper for the comfortable support and maintenance of * * * [his] wife'".
In Commonwealth v. George, 1948, 358 Pa. 118, 123, 56 A. 2d 228, 231, the Supreme Court of Pennsylvania succinctly defined the ...