Thomas B. Benham - Page 6




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                  Respondent points to the requirements of section 71(b)(1)(C)                         
            as disqualifying petitioner's payments from deductibility since                            
            (in the case of individuals legally separated under a decree of                            
            divorce or of separate maintenance) the payee spouse and the                               
            payor spouse cannot be members of the same household.  In making                           
            his argument, however, respondent has failed to consider the                               
            effect of the requirement under section 71(b)(1)(A), and the                               
            definition contained in section 71(b)(2).                                                  
                  A payment may be "alimony" if it is a cash payment "under a                          
            divorce or separation instrument".  Sec. 71(b)(1)(A).  A divorce                           
            or separation instrument can be any of three types:  (1) A decree                          
            of divorce or separate maintenance; (2) a written separation                               
            agreement; or (3) a decree requiring payments for support or                               
            maintenance, other than a decree of divorce or separate                                    
            maintenance.  See sec. 71(b)(2).  The separate household                                   
            requirement of section 71(b)(1)(C) applies by its terms only to                            
            an individual legally separated under a decree of divorce or of                            
            separate maintenance.                                                                      
                  Respondent insists that the parties were never "separated",                          
            citing sec. 1.71-1T(b), Q&A-9, Temporary Income Tax Regs., 49                              
            Fed. Reg. 34451, 34455 (Aug. 31, 1984).  The regulation states                             
            that "a dwelling unit formerly shared by both spouses shall not                            
            be considered two separate households" in the case of spouses                              
            legally separated under a decree of divorce or separate                                    






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