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Section 71(b)(1)(B) requires that the "divorce or separation
instrument * * * not designate such payment as a payment which is
not includible in gross income * * * and not allowable as a
deduction under section 215".
Section 71(c)(1) provides that section 71(a) shall not apply
to that part of any payment which the terms of the divorce or
separation instrument fix (in terms of an amount of money or a
part of the payment) as a sum which is payable for the support of
the children of the payor spouse.
In general, child support cannot be inferred from intent,
surrounding circumstances, or other subjective criteria for
purposes of section 71(c)(1). Rather, the statutory directive
that child support payments be "fixed" is taken literally. The
Supreme Court in Commissioner v. Lester, 366 U.S. 299 (1961),
held that the requirement in section 71 that child support
payments be "fixed" should be taken literally and that child
7(...continued)
separated from his spouse under a decree of
divorce or of separate maintenance, the payee
spouse and the payor spouse are not members of the
same household at the time such payment is made,
and
(D) there is no liability to make any such
payment for any period after the death of the
payee spouse and there is no liability to make any
payment (in cash or property) as a substitute for
such payments after the death of the payee spouse
* * *
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Last modified: May 25, 2011