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(B) the divorce or separation instrument does not
designate such payment as a payment which is not
includable 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 of the same household at the
time such payment is made, and
(D) there is no liability to make any such payment
for any period after the death of the payee spouse and
there is no liability to make any payment (in cash or
property) as a substitute for such payments after the
death of the payee spouse.
The test under section 71(b)(1) is conjunctive; a payment is
deductible as alimony only if all four requirements of section
71(b)(1) are present. See Jaffe v. Commissioner, T.C. Memo.
1999-196.
Characterization of 2002 Payments
Petitioners argue that they are entitled to deduct $16,773
from their 2002 gross income pursuant to section 71(b)(1) as
alimony paid to Ms. Zakrzewski. They claim that they have
substantiated payments through the three checks received into
evidence. Respondent disagrees and contends that the payments
made by petitioners to Ms. Zakrzewski in 2002 do not qualify as
alimony under section 71(b). Respondent argues that the payments
previously discussed were made pursuant to a divorce instrument
that did not explicitly designate the payments as not allowable
as an alimony deduction in compliance with section 71(b)(1)(A)
and (B). Respondent also maintains that the two checks at issue
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Last modified: November 10, 2007