Marie A. Gonzales - Page 5

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          between the amount of family support she received and the amount             
          of alimony she reported.                                                     
               Petitioner maintains that no portion of her family support              
          payments was alimony because, under State law, Dr. Gonzales'                 
          obligation to make the payments would have survived her death.               
          Alternatively, petitioner argues that part of the family support             
          payments was not alimony because the settlement agreement                    
          operated to fix a portion thereof as child support.  The Court               
          agrees with petitioner's primary argument.                                   
               We must decide whether the disputed payments are includable             
          in petitioner's income under section 71(a).  Petitioner bears the            
          burden of proving respondent's determination wrong, which burden             
          remains unchanged despite the fact that this case is fully                   
          stipulated.  See Rules 122(b), 142(a); Welch v. Helvering, 290               
          U.S. 111, 115 (1933); Borchers v. Commissioner, 95 T.C. 82, 91               
          (1990), affd. on other grounds 943 F.2d 22 (8th Cir. 1991).                  
               Generally, alimony5 is taxable to the recipient and deduct-             
          ible by the payor.  See secs. 61(a)(8), 71, 215.  A payment is               
          alimony, includable in a spouse's gross income, when:  (1) The               
          payment is made in cash; (2) the payment is received by (or on               
          behalf of) the spouse under a divorce or separation instrument;              

               5We use this term to include "separate maintenance pay-                 
          ments."  Sec. 71(a).                                                         

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