Michael K. Berry - Page 8

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          Section 71(c)(1) provides, however, that the general inclusion              
          rule of section 71(a) does 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 children of the payor                   
          spouse.”                                                                    
               The parties agree petitioner’s family support payments to              
          Carmen6 satisfy the requirements of section 71(b)(1)(A)-(C) for             
          qualification as alimony.7  They disagree whether those payments            
          satisfy section 71(b)(1)(D).  For ease of reference, we shall               
          refer to the types of liability described in the first and second           
          clauses of section 71(b)(1)(D) as “continuing payment liability”            



               6 We address petitioner’s payments to Drs. Caffaro and                 
          Murphy in part I.E.                                                         
               7 The parties stipulate that $3,824 of the $49,808 paid by             
          petitioner to Carmen in 1999 “represented amounts paid by                   
          petitioner which were attributable to family support arrearages             
          from prior years.”  That language is potentially broad enough to            
          include interest (i.e., the $2,196 interest component of                    
          petitioner’s Dec. 31, 1998, arrearage), which, unlike qualifying            
          alimony, is generally not deductible in this context.  See sec.             
          163(h).  The record does not reflect whether the Superior Court             
          in fact credited the $3,824 to pre-1999 family support                      
          (principal), interest thereon, or both (or neither, for that                
          matter, see supra note 4).  On brief, however, respondent does              
          not distinguish between petitioner’s payments of current and past           
          due (pre-1999) family support in 1999, referring to such amounts            
          in the aggregate as “family support”, the deductibility of which            
          turns on the application of sec. 71(b)(1)(D). Accordingly, we               
          deem respondent to have conceded that the arrears paid by                   
          petitioner to Carmen in 1999 were family support rather than                
          interest.                                                                   




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