Humes Houston Hart - Page 14

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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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