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Commissioner, supra. Nor does it matter that Hermine ultimately
took the position that Harvey was obligated to pay her $530 per
week. Even if the parties eventually reached some kind of
agreement, perhaps an oral one, regarding Hermine’s support,
there is no evidence of a written agreement in the record, as
required by section 71(b)(2)(B). See Ewell v. Commissioner,
supra; Mercurio v. Commissioner, supra; Nemeth v. Commissioner,
T.C. Memo. 1982-646.
Harvey argues that Hermine’s failure to agree to the April 1
letter in writing does not by itself make the letter
insufficient. In support of this argument, Harvey cites
Jefferson v. Commissioner, 13 T.C. 1092 (1949), and Osterbauer v.
Commissioner, T.C. Memo. 1982-266, where letters lacking one
spouse’s written assent were held sufficient for purposes of an
alimony deduction. However, both cases are clearly
distinguishable. Jefferson and Osterbauer construed predecessors
of section 71(b)(2)(A) involving the requirement of a “written
instrument incident to” a decree of divorce or separation, not
the “written separation agreement” requirement presently embodied
in section 71(b)(2)(B). Moreover, the facts in Jefferson and
Osterbauer are readily distinguishable from the instant case. In
both prior cases, we found that an oral agreement clearly had
been reached prior to its memorialization in a writing. The
evidence in the instant case shows the contrary. Hermine
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