Edward J. Richardson - Page 8

                                        - 8 -                                          
          associated with Irene's attendance at college.  This agreement               
          was held invalid by the circuit court.  The decision of the State            
          court, however, is not dispositive of the issue before this                  
          Court.  Section 1.71-1(b)(2)(i), Income Tax Regs., provides that             
          "payments are includible in the wife's gross income whether or               
          not the agreement is a legally enforceable instrument."  This                
          Court's decisions reflect that the unenforceability of an agree-             
          ment under State law does not prevent the deduction of payments              
          made pursuant to such an agreement.  Taylor v. Campbell, 335 F.2d            
          841 (5th Cir. 1964); Engelhardt v. Commissioner, 58 T.C. 641                 
          (1972); Campbell v. Commissioner, 15 T.C. 355 (1950).  We there-             
          fore conclude that the payments by Edward during 1988 were made              
          under a written separation agreement for purposes of section                 
          71(a)(2).5  Taylor v. Campbell, supra at 846; Engelhardt v. Com-             
          missioner, supra at 648.                                                     
               The requirements of section 71(a)(2) having been met, we                
          find that Irene's gross income includes the payments made to her             
          by Edward pursuant to the written separation agreement of                    
          March 17, 1983.  Moreover, we find that these payments are                   
          deductible by Edward pursuant to section 215, which provides for             
          the deductibility of such payments.                                          
          2.  The 1989 and 1990 Payments                                               


          5This would include any payment made by Edward to or on                      
          behalf of Irene pursuant to the agreement during January of 1989,            
          before the effective date of the Circuit Court's order requiring             
          Edward to make temporary maintenance payments.                               



Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  13  14  15  Next

Last modified: May 25, 2011