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1993, respondent determined that the payments received by Irene
were taxable income to her.3
Discussion
We must determine whether Edward's payments to Irene in
1988, 1989, and 1990 are deductible to Edward and, correspond-
ingly, whether such payments constitute taxable income to Irene.
Under section 215, payments are deductible as alimony or separate
maintenance if those payments are includable in the recipient's
gross income under section 71. Yoakum v. Commissioner, 82 T.C.
128, 134 (1984).
1. Payments Made in 1988
The payments made in 1988, which Edward alleges were made
under the separation agreement executed on March 17, 1983, are
governed by the provisions of section 71, as in effect before
amendment in 1984. Conformity with each element of the statute
is required. The parties have stipulated that most of the
requirements of section 71 were met.
Edward and Irene lived separate and apart at all times
during 1988 and 1989. Edward and Irene executed a separation
agreement on March 17, 1983. Edward made payments to Irene
pursuant to the written agreement they had signed. Edward and
3The Commissioner's practice of issuing inconsistent
deficiency notices in such circumstances in order to protect the
Government's right to tax revenue is recognized as a valid
practice. See e.g., Gerardo v. Commissioner, 552 F.2d 549, 555-
556 (3d Cir. 1977), affg. in part, revg. in part and remanding
T.C. Memo. 1975-341.
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