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