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Section 215(a) permits a deduction for the payment of
alimony during a taxable year. Section 215(b) defines alimony as
alimony which is includable in the gross income of the recipient
under section 71. Section 71(b)(1) defines alimony or separate
maintenance as any cash payment meeting the four criteria
provided in subparagraphs (A) through (D) of that section.
Accordingly, if any portion of the payments made by petitioner
fails to meet the four enumerated criteria, that portion is not
alimony and is thus not deductible by petitioner.
Respondent contends that the requirement of subparagraph (A)
has not been satisfied. Section 71(b)(1)(A) defines alimony or
separate maintenance payments as any payment made in cash if such
payment is received by a spouse under a divorce or separation
instrument. "Divorce or separation instrument" is defined in
section 71(b)(2) as a decree or written instrument meeting any of
the requirements in subparagraphs (A), (B), or (C). The order
issued by the circuit court is a decree ordering petitioner to
make support payments to his wife. Sec. 71(b)(2)(C). However,
payments made prior to the entry of a support decree are not
deductible under section 215. Healey v. Commissioner, 54 T.C.
1702 (1970), affd. without published opinion, 71-2 USTC par.
9536, 28 AFTR 2d 71-5217 (4th Cir. 1971); Jachym v. Commissioner,
T.C. Memo. 1984-181; see also White v. Commissioner, T.C. Memo.
1984-65. There is no evidence in the record of any other
instrument satisfying the requirements of section 71(b)(2).
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