Kenneth E. Gilmore - Page 10

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          determine issues of Federal tax law.  See Commissioner v. Tower,            
          327 U.S. 280 (1946); Kenfield v. United States, 783 F.2d 966                
          (10th Cir. 1986); Neal v. Commissioner, T.C. Memo. 1999-97; Nieto           
          v. Commissioner, T.C. Memo. 1992-296.                                       
               A payment must satisfy all the requirements of section 71(b)           
          to qualify as alimony.  See Jaffe v. Commissioner, T.C. Memo.               
          1999-196.  Accordingly, we look to the plain language of the                
          statute to decide the characterization of the $15,600 of                    
          petitioner’s military retirement pension paid to Ms. Warriner.              
               Alimony or separate maintenance payments generally are                 
          deductible by the payor spouse.  Sec. 215.  Alimony or separate             
          maintenance payments are defined by section 71(b), which provides           
          in part:                                                                    
                    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                  






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