Geralyn M. Randich - Page 16

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          Consequently, sections 71 and 215, as amended by DEFRA, govern              
          the payments in issue.                                                      
               Section 215(a) allows an individual, in computing adjusted             
          gross income, to deduct amounts paid during the year if those               
          amounts are includable in the gross income of the recipient under           
          section 71(a).  Section 215 provides in relevant part:                      
               SEC. 215.  ALIMONY, ETC., PAYMENTS.                                    
                    (a) General Rule.--In the case of an individual, there            
               shall be allowed as a deduction an amount equal to the                 
               alimony or separate maintenance payments paid during such              
               individual’s taxable year.                                             
                    (b) Alimony or Separate Maintenance Payments Defined.--           
               For purposes of this section, the term “alimony or separate            
               maintenance payment” means any alimony or separate                     
               maintenance payment (as defined in section 71(b)) which is             
               includible in the gross income of the recipient under                  
               section 71.                                                            
          Therefore, any disqualification from inclusion by the recipient             
          spouse under section 71 will automatically preclude deduction by            
          the payor under section 215.  Consequently, the recipient of                
          alimony payments must include those payments when calculating his           
          or her gross income.  Sec. 61(a)(8).  However, payments to                  
          support children generally are not deductible.  Sec. 71(c)(1).              
          Therefore, a determination that a payment is or is not “alimony”            
          is also a determination of who must shoulder the tax burden of              
          that payment.                                                               
               Section 71(a) provides that “Gross income includes amounts             
          received as alimony or separate maintenance payments.”  As                  






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