Dewey and Carlena K. Hammond - Page 5

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                                     Discussion                                       
               A motion for summary judgment may be granted if the                    
          pleadings and other materials demonstrate that no genuine issue             
          of material fact exists and the decision can be rendered as a               
          matter of law.  Rule 121(b).  As noted above, the parties agree             
          that this case may be resolved by summary judgment, and we are              
          satisfied that no genuine issue exists as to any of the material            
          facts.  We proceed accordingly.                                             
               Section 215(a) allows as a deduction to the payor an amount            
          equal to the alimony or separate maintenance payments made during           
          the payor's taxable year that are includable in the recipient's             
          gross income under section 71(a).  Whether a payment constitutes            
          alimony or separate maintenance within the meaning of sections              
          71(a) and 215(a) is determined by reference to section 71(b).               
               Section 71(b) defines an alimony or separate maintenance               
          payment as follows:                                                         
                    (b) Alimony or Separate Maintenance Payments                      
               Defined.--For purposes of this section--                               
                         (1) In general.--The term "alimony or                        
                    separate maintenance payment" means any payment in                
                    cash if--                                                         
                              (A) such payment is received by (or on                  
                         behalf of) a spouse under a divorce or                       
                         separation instrument,                                       
                              (B) the divorce or separation instrument                
                         does not designate such payment as a payment                 
                         which is not includible in gross income under                







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