Cheryl J. Miller - Page 17




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          are includable in Ms. Miller's income has been raised by                    
          respondent in this case.9                                                   
               We have carefully considered all remaining arguments made by           
          the parties for a result contrary to that expressed herein, and,            
          to the extent not discussed above, find them to be irrelevant or            
          without merit.                                                              
          Conclusion                                                                  
               The unallocated family support payments made by Mr. Lovejoy            
          to Ms. Miller in 1993 and 1994 are not includable in Ms. Miller's           
          income under section 71 and are not deductible by Mr. Lovejoy               
          under section 215.                                                          
               Our holding in this opinion will be incorporated into the              
          decisions to be entered in these cases when all other issues are            
          resolved.                                                                   
                                                  An appropriate order will           
                                             be issued.                               





               9Respondent did not raise sec. 61 as an alternative ground             
          for including the unallocated payments in Ms. Miller's income.              
          See, e.g., Mass v. Commissioner, 81 T.C. 112 (1983).  But cf.               
          Gould v. Gould, 245 U.S. 151 (1917) (alimony not includable in              
          recipient's gross income under predecessor to sec. 61).  Since              
          the issue was not raised expressly in the notices of deficiency             
          and since all of the parties have tried this case on the                    
          assumption that only sec. 71 applies, we do not address whether             
          family support payments not meeting the requirements of sec. 71             
          must be included in income under sec. 61.                                   




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