Virginia M. Marten - Page 7




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          Ellis v. Commissioner, T.C. Memo. 1973-152.  In the present case,           
          Ms. Marten was the primary beneficiary and the named owner of the           
          $750,000 policy.  Ms. Marten had sole power to change the                   
          beneficiary on the policy.  Thus, the premium payments were paid            
          by Mr. Lane in discharge of a legal obligation because of the               
          marital or family relationship.  We conclude that the premium               
          payments satisfy all of the elements of section 71(a) and                   
          constitute alimony.  Ms. Marten must include the premium payments           
          in income, and Mr. Lane is entitled to deduct the premium                   
          payments.                                                                   
               Ms. Marten argues that the $750,000 policy was intended to             
          provide for Niklas’ support and thus cannot be alimony.                     
          According to former section 71(b), payments fixed as support for            
          minor children were not alimony.  In Commissioner v. Lester, 366            
          U.S. 299, 301 (1961), the U.S. Supreme Court held that in order             
          for a divorce decree to “fix” an amount as child support under              
          former section 71(b) the decree must expressly specify or fix the           
          amount of each payment which is for child support.  The Court               
          held that absent such an express allocation, the entire payment             
          is alimony and taxable to the wife.  See Commissioner v. Lester,            
          supra.3                                                                     

               3  Although Congress modified the result in Commissioner v.            
          Lester, 366 U.S. 299 (1961), by the amendments to sec. 71                   
                                                             (continued...)           






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