Marilyn J. Baker - Page 7




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          intended purpose for the payments is of no consequence."  Thus,             
          we find that the parties' intent in this case, except as                    
          reflected in the divorce or separation instrument itself, is                
          moot.  We look to the agreements executed by the parties and                
          reject any arguments based on the settlement negotiations                   
          mentioned above.  The only relevant question is whether the                 
          classification of payments as "property settlement" in the                  
          Agreement or Judgment of Divorce is sufficient to satisfy section           
          71(b)(1)(B).                                                                
               A cash payment satisfies section 71(b)(1)(B) if the divorce            
          agreement or other instrument does not designate such payment as            
          a payment which is not includable in gross income under section             
          71 and not allowable as a deduction under section 215.  This                
          Court has previously held that the designation in the instrument            
          "need not specifically refer to sections 71 and 215".  Estate of            
          Goldman v. Commissioner, 112 T.C. 317, 323 (1999).  However, the            
          statutory language of section 71(b)(1)(B) does not allow                    
          designations by attenuated implication.  Medlin v. Commissioner,            
          T.C. Memo. 1998-378.  The "instrument must contain a clear,                 
          explicit and express direction" that the payments are not to be             
          treated as income.  Richardson v. Commissioner, 125 F.3d 551, 556           
          (7th Cir. 1997), affg. T.C. Memo. 1995-554.  If there is no                 
          express designation that the payments are not to be treated as              







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