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recipient and deductible by an individual payor in the year paid.
See secs. 71(a) and 215(a).
Section 71(b)(1) defines “alimony or separate maintenance
payment” as:
any payment in cash if--
(A) such payment is received by (or on behalf of)
a spouse under a divorce or separation instrument,
(B) the divorce or separation instrument does not
designate such payment as a payment which is not
includible in gross income under this section and not
allowable as a deduction under section 215,
(C) in the case of an individual legally separated
from his spouse under a decree of divorce or of
separate maintenance, the payee spouse and the payor
spouse are not members of the same 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.
The parties do not dispute that the requirements of section
71(b)(1)(B) and (C) are met in the instant case. The principal
dispute concerns section 71(b)(1)(A); while Harvey contends that
the amounts in dispute meet the requirements of section
71(b)(1)(A), Hermine and respondent argue that the amounts were
not received by or on behalf of Hermine under a divorce or
separation instrument. In addition, respondent argues that the
amounts do not in any event qualify as alimony or separate
maintenance payments because Harvey’s liability for the payments
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