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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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Last modified: May 25, 2011