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of the four enumerated criteria, that portion is not alimony and
thus is not deductible or includable.
Section 71(b)(1)(B) requires that the "divorce or separation
instrument does not designate such payment as a payment which is
not includible in gross income * * * and not allowable as a
deduction under section 215".
Ms. Burkes argues that with respect to the attorney's fees
question, section 71(b)(1)(A), (B), and (D) is in dispute, and
with respect to the remainder of alimony issues, section
71(b)(1)(B) and (D) is in dispute. We consider each alimony item
separately.
Payment of Attorney's Fees
The operative language of the final divorce judgment
concerning the payment of attorney's fees is as follows: "[Mr.
Burkes] shall pay to * * * [Ms. Burkes] the sum of $60,000.00 as
additional alimony toward attorney fees, for which sum judgment
is rendered and execution may issue." Ms. Burkes argues that as
a matter of Ohio law the term "alimony" can include both spousal
support and property settlements. Therefore, she contends that
the State divorce court use of the term alimony here is
inconclusive. Mr. Burkes agrees that prior to 1991, the term
"alimony", under Ohio law, could refer to either a division of
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