In re Marriage of Malik

Filed 8/2/06 In re Marriage of Malik CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Javed I. Malik (husband) appeals from an order that he pay one-half of the capital gains tax resulting from the sale of a community asset associated with the dissolution of his marriage to respondent Rehana Malik (wife). He contends he should only pay a percentage of the tax obligation equal to the percentage of the proceeds he realized from the total resulting from the sale of the taxed asset. We affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

The parties are divorced. They entered into a marital settlement agreement, drafted by husband, that states in part that real property located in Massachusetts is community property and proceeds of the sale of the property "will be [divided] equally after the tax liabilities are met."

The property was sold for $191,071. Wife was awarded $172,751 of the proceeds and husband was awarded $25,000 to equalize the division of community assets.

Husband received notice from the Franchise Tax Board that a capital gains tax of $23,191.66 was being assessed on the sale of the property. Wife offered to pay one-half of the capital gains obligation. Husband refused the offer, contending that each party's tax liability was proportionate to the share of sale proceeds each party received. He contended that wife's tax liability was $20,245. Wife refused to pay more than one-half of the tax assessment. Husband filed an order to show cause requesting the court to find that the parties' tax liability was in proportion to each party's share of the proceeds of sale.

After hearing, the court issued an order finding that the capital gains tax assessment is a community obligation and ordered each party to pay one-half of the assessment and one-half of any penalties and interest that may have accrued.

Husband makes the same argument on appeal. Wife did not file a respondent's brief.

DISCUSSION

Family Code section 2550 states in part: "Except upon the written agreement of the parties, or on oral stipulation of the parties in open court, . . . in a proceeding for dissolution of marriage . . . , the court shall . . . divide the community estate of the parties equally." The marital settlement agreement designates the Massachusetts property as community property and contains an express stipulation to divide community property equally. The record contains no evidence of a contrary intent.

Husband's argument is without merit. The law in California is that "each party is responsible for one-half of the capital gains taxes incurred by the sale [of community property] regardless of the party's share of the sale proceeds." (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1095; see also In re Marriage of Harrington (1992) 6 Cal.App.4th 1847, 1852, and cases cited.)

The order is affirmed.

NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, .P.J.

YEGAN, J.

Salley Dichter, Temporary Judge*

Superior Court County of Ventura

______________________________

Javed I. Malik, in pro. per., for Appellant.

No appearance for Respondent.

Publication Courtesy of California attorney referral.

Analysis and review provided by Vista Real Estate Attorney.

*(Pursuant to Cal. Const., art. VI, § 21.)