Irv C. Jaffe - Page 10




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          equitable distribution".  As such, respondent contends, the                 
          withdrawals by Ms. Jaffe did not constitute alimony because the             
          agreed order does not satisfy section 71(b)(1)(A).  Respondent              
          further argued that, although the later divorce decree did                  
          characterize the withdrawals by Ms. Jaffe as alimony pendente               
          lite, the divorce decree is dated September 13, 1994, and,                  
          therefore, could not retroactively make or define the prior                 
          withdrawals as deductible alimony.                                          
               Respondent's second position was that the agreed order of              
          September 4, 1992, provided that Mr. Jaffe "shall be responsible            
          for income taxes due on the amount which is ultimately                      
          adjudicated to have been alimony pendente lite".  Respondent                
          argued that this language constituted a designation under section           
          71(b)(1)(B) that the withdrawals by Ms. Jaffe were not includable           
          in her gross income and were not deductible by Mr. Jaffe.                   
               Mr. Jaffe's position, asserted in a pretrial memorandum, as            
          well as in his testimony at trial, was that the alimony order               
          dated September 13, 1994, stated unequivocally that the                     
          withdrawals by Ms. Jaffe were alimony pendente lite and that                
          statement alone entitled him to an alimony deduction.                       
               Ms. Jaffe argued that the withdrawals were a division of the           
          marital estate and, therefore, did not constitute alimony.                  
               The Court notes that the withdrawals by Ms. Jaffe were made            
          out of the Vanguard account, which constituted marital property             





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