Attorney-at-Law

SCRIVENER’S ERROR?

In Uncategorized on 06/12/2014 at 16:10

Nope

First year law school class in contracts, and we’re discussing the case of the stenographer’s error in taking down the price of potatoes. Scrivener’s error, so no contract, says the Court. Meeting of parties’ minds not reflected in erroneous letter (it was a long time ago, pre e-mail, texting, etc.).

Well, now Hank Black, the legal dictionarian, calls it “clerical error”, but whichever it is, that’s not going to help Adrio Michael Baur, 2014 T. C. 117, filed 6/12/14.

Adrio wants to claim that the emancipation proclamation in favor of his child, set forth in his divorce Marital Settlement Agreement, is a “scrivener’s error”, which State court retroactively removed from the judgment of divorce (after Adrio got the SNOD) but Judge Chiechi isn’t buying it.

Remember, Section 71(c)(2) makes any contingency to do with children into child support and not alimony.

“We must determine what, if any, effect we should give to that purported nunc pro tunc order. In making that determination, we have in mind that ‘the definition of alimony for Federal income tax purposes turns on a fulfillment of the statutory test [in section 71] and not on the intent of the parties to a divorce proceeding or of the court overseeing that proceeding’. Okerson v. Commissioner, 123 T.C. 258, 266 (2004). We also have in mind what we stated in Gordon v. Commissioner, 70 T.C. 525, 530 (1978):

“‘State court adjudications retroactively redesignating divorce- related payments as alimony and not child support (or vice versa) are generally disregarded for Federal income tax purposes if the order retroactively changes the rights of the parties or the legal status of the payments. An exception to this rule is made when a retroactive judgment corrects a divorce decree that mistakenly failed to reflect the true intention of the court at the time the decree was rendered. * * * [Citations omitted.]”. 2014 T. C. Memo. 117, at p. 12.

And the Marital Settlement Agreement, incorporated in the divorce judgment years ago, said Adrio and ex “freely and voluntarily entered into this Agreement of their own volition, free from any duress or coercion and with full knowledge of each and every provision contained in this Agreement and the consequences thereof. * * *.” 2014 T. C. Memo. 117, at p. 4.

Adrio, you’re stuck with it.

And because you introduced no evidence that you acted in good faith reliance, you get the substantial understatement chop.

Takeaway- Section 71(c)(2) is a boobytrap for family law practitioners. Hopefully, if we bloggers talk it up often enough, the word will get out.

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