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gross income under section 71. Yoakum v. Commissioner, supra at
134.6
Thus, if the payments in the instant case constitute
alimony, then Faye must include these amounts in income,7 and
John and Sarah may deduct them pursuant to section 215(a).
Alternatively, if the payments represent a property settlement,
then Faye need not include these amounts in income, and John and
Sarah are not entitled to deduct them. Respondent has protected
6The provisions of sec. 71(a) applicable to this case
provided:
(1) Decree of divorce or separate maintenance.--
If a wife is divorced or legally separated from her
husband under a decree of divorce or of separate
maintenance, the wife's gross income includes periodic
payments (whether or not made at regular intervals)
received after such decree in discharge of (or
attributable to property transferred, in trust or
otherwise, in discharge of) a legal obligation which,
because of the marital or family relationship, is
imposed on or incurred by the husband under the decree
or under a written instrument incident to such divorce
or separation.
Secs. 71 and 215 were amended by sec. 422(a) and (b) of the
Deficit Reduction Act of 1984, Pub. L. 98-369, 98 Stat. 795, 797.
The 1984 amendments apply to divorce or separation instruments
modified on or after Jan. 1, 1985, if the modification provides
that the 1984 amendments govern. The amendments do not apply to
this litigation.
7In addition to sec. 71(a), sec. 61(a)(8) requires a
taxpayer to include "Alimony and separate maintenance payments"
in gross income.
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