UNITED STATES TAX COURT
MILAGROS Z. GUECO, Petitioner v
.
COMMISSIONER OF INTERNAL REVENUE, Respondent
Docket No. 545-01S. Filed June 10, 2002.
Milagros Z. Gueco, pro se.
James N. Beyer
, for respondent.
DINAN, Special Trial Judge
: This case was heard pursuant to the provisions of section 7463 of the Internal Revenue Code in effect at the time the petition was filed. The decision to be entered is not reviewable by any other court, and this opinion should not be cited as authority. Unless otherwise indicated, subsequent section references are to the Internal Revenue Code in participant in 1998, she is not entitled to deduct a contribution to an IRA.
An active participant is defined by section 219(g)(5) to include an individual who is an active participant in a plan described in section 401(a). Sec. 219(g)(5)(A)(i). Elaborating upon this circular definition, the regulations provide that an individual is an active participant in a profit-sharing plan if, during the taxable year, (1) a forfeiture is allocated to her account, (2) an employer contribution is added to her account, or (3) a mandatory or voluntary contribution is made by the individual to her account. Sec. 1.219-2(d)(1) and (e), Income Tax Regs. Petitioner admits that during the first 5 months of 1998 she was covered by the pension plan offered by her employer. Furthermore, the Form W-2, Wage and Tax Statement, issued to petitioner for that year indicates she made an elective deferral of $1,056.16. Therefore, petitioner was an active participant in her employer’s pension plan.
Petitioner argues that she should be allowed to deduct at least half of the IRA contribution for 1998 because she participated in the pension plan for less than half of the year. The law is clear that the restriction on deductions for contributions to IRA’s applies to taxpayers who are active participants for any portion of a taxable year. Sec. 219(g)(1).
We sustain respondent’s determination that petitioner is not entitled to the IRA contribution deduction.
The second issue for decision is whether petitioner is entitled to deduct the payment of certain legal fees to her attorney in connection with petitioner’s divorce.
Personal, living, and family expenses generally are not deductible by taxpayers. Sec. 262(a). Attorney’s fees and other costs paid in connection with a divorce generally are personal expenses and therefore nondeductible. Sec. 1.262-1(b)(7), Income Tax Regs. On the other hand, expenses paid for the production or collection of income, or in connection with the determination, collection, or refund of any tax, generally are deductible. Sec. 212(1), (3). This is the case even if the expenses are paid in connection with a divorce. Sec. 1.262-1(b)(7), Income Tax Regs.; United States v. Gilmore , 372 U.S. 39 (1963); Swain v.
Commissioner
, T.C. Memo. 1996-22, affd. without published opinion 96 F.3d 1439 (4th Cir. 1996).
The legal fees which petitioner paid to her attorney were paid in order to secure petitioner’s divorce. They were not paid in order to secure the production of income (i.e., alimony), and petitioner does not allege that they were paid in connection with any tax advice. Thus, the legal fees are personal expenses which are nondeductible under section 262(a).
Reviewed and adopted as the report of the Small Tax Case
Division.
To reflect the foregoing, Decision will be entered under Rule 155 .