- 6 - 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 separatePage: Previous 1 2 3 4 5 6 7 8 9 10 Next
Last modified: May 25, 2011