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(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 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 and
there is no liability to make any payment (in cash or
property) as a substitute for such payments after the
death of the payee spouse.
Thus, the subject $18,500 received by Ms. Jaffe during 1994
constitutes alimony, deductible by Mr. Jaffe and includable in
Ms. Jaffe's gross income, only if all four criteria of section
71(b)(1) are met.
Respondent took the position that the $18,500 in withdrawals
by Ms. Jaffe did not constitute alimony, and, therefore, such
amounts were not includable in her gross income and,
correspondingly, were not deductible by Mr. Jaffe. Respondent
based this position on two grounds. First, there was no
definitive characterization of the withdrawals in the agreed
order of September 4, 1992. The agreed order stated that such
amounts "ultimately determined to be payable as alimony pendente
lite will be credited against defendant's [Mr. Jaffe] share at
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Last modified: May 25, 2011