Irv C. Jaffe - Page 12




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          that the withdrawals by Ms. Jaffe are not includable in her gross           
          income and are not deductible by Mr. Jaffe.                                 
               Under section 71(b)(1)(B), if a divorce or separation                  
          agreement designates that payments by the payor-spouse are not              
          deductible under section 215, and that such payments are not                
          includable in the gross income of the payee-spouse under section            
          71, such amounts are not alimony under section 71(a) and,                   
          therefore, are not includable in the recipient's gross income and           
          are not deductible by the payor.  In the case here, there was no            
          such designation.  Although 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 his alimony pendente lite obligation", such language, in the           
          view of the Court, does not suffice to constitute a designation             
          for purposes of section 71(b)(1)(B).  Cf. Estate of Goldman v.              
          Commissioner, 112 T.C. ___ (1999); Richardson v. Commissioner,              
          T.C. Memo. 1995-554, affd. 125 F.3d 551 (7th Cir. 1997).  The               
          Court, therefore, rejects respondent's argument that the agreed             
          order of September 4, 1992, constituted a designation within the            
          purview of section 71(b)(1)(B).  Accordingly, as to one-half of             
          the withdrawals by Ms. Jaffe during 1994, section 71(b)(1)(B)               
          does not apply to make those withdrawals nondeductible by the               
          payor-spouse nor preclude such withdrawals from being included in           
          the gross income of the recipient spouse, Ms. Jaffe.                        





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