Geralyn M. Randich - Page 18

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               In general, child support cannot be inferred from intent,              
          surrounding circumstances, or other subjective criteria for                 
          purposes of section 71.  Rather, the statutory directive that               
          child support payments be “fixed” is taken literally.  The                  
          inflexibility of this requirement was recognized by the Supreme             
          Court in Commissioner v. Lester, 366 U.S. 299 (1961).  In that              
          case, the Court refused to find by inference that the statutory             
          requirement was met where the parties’ agreement provided for               
          percentage reduction of payments by a husband to a wife upon the            
          marriage, emancipation, or death of any of their three children.            
          The Court examined the legislative history of the statutory                 
          predecessor of section 71(c)(1) and quoted from the report of the           
          Office of the Legislative Counsel to the Senate committee which             
          said:                                                                       
               “If an amount is specified in the decree of divorce                    
               attributable to the support of minor children, that amount             
               is not income of the wife ....  If, however, that amount               
               paid the wife includes the support of children, but no                 
               amount is specified for the support of the children, the               
               entire amount goes into the income of the wife ....” * * *             
          Commissioner v. Lester, supra at 303 (quoting Hearings before               
          Senate Committee on Finance on H.R. 7378, 77th Cong., 2d Sess.              
          48) (emphasis supplied)).  The Court went on to conclude:                   
               This language leaves no room for doubt.  The agreement must            
               expressly specify or “fix” a sum certain or percentage of              
               the payment for child support before any of the payment is             
               excluded from the wife’s income.  The statutory requirement            
               is strict and carefully worded.  It does not say that “a               
               sufficiently clear purpose” on the part of the parties is              
               sufficient to shift the tax.  It says that the “written                





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