- 7 -
Respondent disagrees and contends that the payments made in
2002 to petitioner qualified as alimony taxable to petitioner as
the recipient under section 71(b). In particular, respondent
notes that the temporary order did not expressly provide that the
payments were not includable in petitioner’s gross income and not
allowable as a deduction by Mr. Nahhas under section 71(b)(1)(B).
Moreover, respondent points out that the temporary order did not
“fix” any portion of the payment as payable for the support of
the children as required by section 71(c)(1) for child support.
We agree with respondent.
It is clear from the record that the 2002 payments satisfy
the requirements of subparagraphs (A) and (C) of section 71(b).
Petitioner received the payments under the terms of the temporary
order, and petitioner and Mr. Nahhas were not members of the same
household in 2002.
The Court now considers section 71(b)(1)(B), which provides
that a payment will not be alimony if the divorce or separation
instrument designates the payment as not includable in gross
income and not allowable as an alimony deduction. The
designation in the divorce or separation instrument does not need
to specifically refer to section 71 or 215. Estate of Goldman v.
Commissioner, 112 T.C. 317, 323 (1999), affd. without published
opinion sub nom. Schutter v. Commissioner, 242 F.3d 390 (10th
Cir. 2000). The divorce or separation instrument, however, “must
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: May 25, 2011