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Testing Unallocated Family Support Payments for Child Support
In order for any part of an unallocated family support
payment to qualify as child support for Federal income tax
purposes, it must satisfy the provisions of section 71(c). As a
general rule, section 71(c)(1) provides that that part of any
payment which the terms of the divorce or separation instrument
fix as a sum payable for the support of the payor's children is
not alimony under section 71.
Neither respondent nor Ms. Miller argues that any portion of
the unallocated family support payments is fixed as child support
and thus excludable from Ms. Miller's gross income. Instead,
both respondent and Ms. Miller take the position that the
payments are not alimony and, therefore, by process of
elimination, the payments must be child support.
We decline to address whether the unallocated family support
payments, or any part of them, qualify as child support under
section 71(c). Ms. Miller has asserted that the unallocated
family support payments are child support only because she wants
to avoid any argument that those payments are includable in her
income. Since the unallocated family support payments do not
satisfy the termination requirement of section 71(b)(1)(D) and,
therefore, do not qualify as alimony for Federal income tax
purposes in any event, it is not necessary to decide the child
support issue. No other ground for asserting that the payments
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