Mary K. Heckaman - Page 5




                                        - 5 -                                         

                    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.                              
               If the payments received by petitioner meet the four                   
          enumerated criteria, they will be considered alimony and                    
          includable in petitioner’s income.  There appears to be no                  
          dispute between the parties concerning the requirements of                  
          section 71(b)(1)(A), (B), and (C).  As pertinent to our                     
          discussion, a divorce decree constitutes a "divorce or separation           
          instrument", see sec. 71(b)(2)(A), and the parties do not dispute           
          that the provisional order of the Divorce Court constitutes a               
          separation instrument.                                                      
               On the other hand, the parties dispute whether the                     
          requirement of section 71(b)(1)(D) has been satisfied.  The                 
          history of section 71(b)(1)(D) establishes that it was enacted to           
          distinguish alimony, deductible by the payor and includable in              
          the payee’s gross income, from payments in the nature of property           
          settlements, which are nondeductible by the payor and excludable            
          from the payee’s gross income.                                              
               In 1984, Congress revised section 71 in an attempt to                  
          minimize the differences in Federal tax consequences created by             
          differences in State laws and to establish an objective and                 





Page:  Previous  1  2  3  4  5  6  7  8  9  10  11  12  Next

Last modified: May 25, 2011