Rev. Rul. 67-442

Advice has been requested whether an ex parte divorce is valid for Federal income tax purposes even though the divorce has been invalidated by a state court under the circumstances described below.

The taxpayer obtained an ex parte divorce in Mexico in 1961. His divorce was promptly challenged by his first wife and subsequently declared invalid in 1963 by a state court with personal jurisdiction of the parties and jurisdiction of the subject matter of the action. A marriage entered into by the husband following the Mexican divorce was also declared to be invalid.

G.C.M. 25250, C.B. 1947-2, 32, holds that a Mexican divorce decree of a couple domiciled in Connecticut will be recognized for Federal income tax purposes, even though it was doubtful that the Connecticut courts would recognize the validity of the Mexican decree. However, the Connecticut court was never presented with the issue of the validity of the particular Mexican decree. See Revenue Ruling 57-113, C.B. 1957-1, 106, which states that the position taken in G.C.M. 25250 was not intended to recognize the Mexican decree over subsequent decrees in other jurisdictions.

The Internal Revenue Service generally will not question for Federal income tax purposes the validity of any divorce decree until a court of competent jurisdiction declares the divorce to be invalid. However, where a state court, in a proceeding in which there is personal jurisdiction of the parties or jurisdiction of the subject matter of the action, declares the prior divorce to be invalid, the Service will usually follow the later court decision rather than the divorce decree for Federal income tax purposes for such years as may not be barred by the statute of limitations. In this regard the Service will not follow the decisions in Estate of Herman Borax v. Commissioner , 349 F.2d 666 (1965), certiorari denied, 383 U.S. 935 (1966), and Harold E. Wondsel v. Commissioner , 350 F.2d 339 (1965), certiorari denied, 383 U.S. 935 (1966).

Furthermore, the Service will not follow the Borax and Wondsel decisions in the disposition of cases involving questions of marital status for Federal estate and gift tax purposes, such as questions pertaining to the marital deductions allowed by sections 2-056 and 2523 of the Internal Revenue Code of 1954.

G.C.M. 25250 is clarified to remove any possible implication that the Service will follow invalidated divorce decrees for Federal income tax purposes.