Norman D. Peterson - Page 8

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                         (B) the divorce or separation instrument does not            
                    designate such payment as a payment which is not                  
                    includible in gross income under this section and not             
                    allowable as a deduction under section 215,                       
                         (C) in the case of an individual legally separated           
                    from his spouse under a decree of divorce or of                   
                    separate maintenance, the payee spouse and the payor              
                    spouse are not members of the same household at the               
                    time such payment is made, and                                    
                         (D)  there is no liability to make any such                  
                    payment for any period after the death of the payee               
                    spouse * * *.  (Emphasis added.)                                  
               For purposes relevant to the present dispute, the term                 
          "divorce or separation instrument" underscored above means a                
          decree requiring a spouse to pay for the support or maintenance             
          of the other spouse.  Sec. 71(b)(2)(C).  Such a decree must be              
          enforceable at the time it is issued.  See Taylor v.                        
          Commissioner, 55 T.C. 1134, 1139-1140 (1971); White v.                      
          Commissioner, T.C. Memo. 1984-65.                                           
               According to Marta, the spousal support payments made by               
          Norman between January 6, and June 9, 1992, do not constitute               
          alimony within the meaning of section 71(b)(1) because the Minute           
          Order incorporating the Tentative Decision was not an enforceable           
          divorce or separation instrument within the meaning of section              
          71(b)(2) at the time it was issued.  On the other hand, Norman              
          and respondent maintain that the Minute Order incorporating the             
          Tentative Decision suffices under section 71(b)(2)(C) as a                  
          support decree, thereby permitting Norman to deduct the support             
          payments at issue on his 1992 tax return and requiring their                

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