Thomas B. Benham - Page 5

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            that petitioner is not entitled to deduct payments made to Leslie                          
            Benham under the Temporary Agreement as alimony.                                           
                  Petitioner argues that because the payments in question were                         
            made pursuant to a written separation agreement, it does not                               
            matter that he and Leslie Benham resided in the same household                             
            while the payments were made.                                                              
                  Section 215 states that "there shall be allowed as a                                 
            deduction an amount equal to the alimony or separate maintenance                           
            payments [defined in section 71(b)] paid during such individual's                          
            taxable year."  Whether petitioner's payments qualify for                                  
            deduction therefore hinges on their meeting the definition of                              
            "alimony" contained in section 71(b)(1).  Section 71(b)(1)                                 
            defines the term "alimony or separate maintenance payment"                                 
                  The term "alimony or separate maintenance payment"                                   
                  means any payment in cash if --                                                      
                        (A) such payment is received by (or on behalf of)                              
                  a spouse under a divorce or separation instrument,                                   
                        (B) the divorce or separation instrument does not                              
                  designate such payment as a payment which is not                                     
                  includible in gross income under this section and not                                
                  allowable as a deduction under section 215,                                          
                        (C) in the case of an individual legally separated                             
                  from his spouse under a decree of divorce or of                                      
                  separate maintenance, the payee spouse and the payor                                 
                  spouse are not members of the same household at the                                  
                  time such payment is made, and                                                       
                        (D) there is no liability to make any such payment                             
                  for any period after the death of the payee spouse and                               
                  there is no liability to make any payment (in cash or                                
                  property) as a substitute for such payments after the                                
                  death of the payee spouse.                                                           

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