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payments are included in the gross income of the payee spouse,
while section 215(a) provides the general rule that alimony
payments are deductible by the payor spouse. Section 215(b)
provides in pertinent part that the term “alimony” means any
alimony, as defined in section 71(b), which is includable in the
gross income of the recipient under section 71. Section 71(b)
defines alimony as follows:
SEC. 71(b) Alimony Or Separate Maintenance
Payments Defined.–-For purposes of this section--
(1) In General.-–The term “alimony or separate
maintenance payment” means any payment in cash if-
(A) such payment is received by (or on
behalf of) a spouse under a divorce or separation
instrument,
(B) the divorce or separation instrument
does not designate such payment as a payment which
is not includible in gross income under this
section and not allowable as a deduction under
section 215,
(C) in the case of an individual legally
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.
The parties agree that petitioner’s payment of Mrs. Berry’s
attorney’s fees satisfies the requirements set forth in section
71(b)(1)(A), (B), and (C). However, the parties disagree whether
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Last modified: May 25, 2011