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"unallocated family support" found in the Judgment does not fix
the payments as child support under the pre-1984 rules.
Petitioners bear the burden to prove that the Commissioner's
determinations are incorrect. Rule 142(a); Welch v. Helvering,
290 U.S. 111, 115 (1933). Deductions are a matter of legislative
grace and a taxpayer must be able to show that the deduction
sought comes within the express provisions of the statute. Rule
142(a); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440
(1934).
The deductibility of alimony is governed by sections 71 and
215. The Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat.
795, applicable to divorce instruments executed after December
31, 1984, revised both sections. The initial issue we must
decide is whether James' divorce instrument was executed as of
December 11, 1984, or April 1, 1985.
Petitioners rely on the New York case of Jayson v. Jayson,
54 A.D.2d 687, 387 N.Y.S.2d 274 (1976), to support their view
that James was divorced as of December 11, 1984, the date of the
hearing in open court. In Jayson, the Appellate Division of the
New York Supreme Court held that a judgment can be entered nunc
pro tunc in a divorce action after the death of one of the
parties, if such party was entitled to the divorce while both of
the parties were living. Jayson v. Jayson, supra.
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