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In order for Edward's payments made in 1989 and 1990
pursuant to the orders of the circuit court to be deductible by
him and includable in Irene's income, they would have to qualify
as "alimony or separate maintenance payments." Secs. 71(a),
215(a). With respect to a divorce or separation instrument
executed after 1984, an alimony or separate maintenance payment
is defined in section 71(b)(1) as any payment in cash if:
(A) such payment is received by (or on behalf of)
a spouse under a divorce or separation instrument,
(B) the divorce or separation instrument does not
designate such payment as a payment which is not
includible 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.
Furthermore, the payments are not deductible by the payor spouse
and are not taxable to the payee spouse if the spouses filed a
joint return. Sec. 71(e).
The October 3, 1989, circuit court opinion is a divorce or
separation instrument for purposes of section 71(b)(1). Sec.
71(b)(2)(A), (C). Edward made payments in 1989 and 1990 pursuant
to the circuit court's Memorandum Opinion dated October 3, 1989,
and its modifying Order of December 15, 1989. The circuit court
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