- 7 - maintenance. But respondent overlooks language in the very same provision that states: If the spouses are not legally separated under a decree of divorce or separate maintenance, a payment under a written separation agreement or a decree described in section 71(b)(2)(C) may qualify as an alimony or separate maintenance payment notwithstanding that the payor and payee are members of the same household at the time the payment is made. Petitioner argues, and we agree, that his payments were made under a written separation agreement. The term "written separation agreement" is not defined by the Code, the legislative history, or applicable regulations. Jacklin v. Commissioner, 79 T.C. 340, 346 (1982); Leventhal v. Commissioner, T.C. Memo. 2000-92; Keegan v. Commissioner, T.C. Memo. 1997-359. We have stated, however, that a written separation agreement is a clear, written statement of the terms of support for separated parties. See Bogard v. Commissioner, 59 T.C. 97, 101 (1972). It must be a writing that constitutes an agreement. See Grant v. Commissioner, 84 T.C. 809, 823 (1985), affd. per curiam without published opinion 800 F.2d 260 (4th Cir. 1986). An agreement requires mutual assent or a meeting of the minds. See Kronish v. Commissioner, 90 T.C. 684, 693 (1988). But a written agreement does not have to be legally enforceable. See Richardson v. Commissioner, T.C. Memo. 1995-554, affd. 125 F.3d 551, 554 (7th Cir. 1997). It is sufficient that it wasPage: Previous 1 2 3 4 5 6 7 8 9 10 Next
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