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We first examine the basis for respondent's position in the
instant case. Respondent based the deficiency on several
grounds: (1) Inconsistent positions were taken on petitioner's
and Leichter's Federal income tax returns with respect to the
same payments; (2) the promissory note which extended payments
beyond the death of petitioner was not incorporated into the
divorce decree; and (3) the original promissory note which is
part of the records of the Superior Court of California was not
signed.
In general, section 71 mandates the inclusion of alimony in
the recipient's gross income, and section 215 allows the payor to
deduct the same from gross income. Secs. 71(a), 215(a),
62(a)(10). Section 215(b) defines an "alimony or separate
maintenance payment" as a payment defined in section 71(b)
includable in the gross income of the recipient under section
71.4 Sec. 215(b). Generally, alimony includes payments between
spouses or former spouses, pursuant to a written instrument or
4 Sec. 215 provides as follows:
SEC. 215(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.
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Last modified: May 25, 2011