Hermine Leventhal - Page 21




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          standard.  See Jacklin v. Commissioner, 79 T.C. 340, 351 (1982)               
          (agreement to provide “funds * * * necessary to sustain a                     
          standard of living equivalent to that which obtained before the               
          separation” not insufficient as matter of law).  Based on the                 
          foregoing authority, we believe petitioners’ agreement in the                 
          June 1 letters that Harvey would “pay all normal and usual                    
          expenses of maintenance and operation” of the two identified                  
          residences qualifies as a written separation agreement with                   
          ascertainable standards.  That petitioners did not execute a                  
          written agreement covering all elements of Hermine’s support does             
          not negate the fact that they had a written agreement covering a              
          part.  Accordingly, cash payments received by (or on behalf of)               
          Hermine within the terms of the June 1 letters were payments made             
          “under” a divorce or separation instrument as required by section             
          71(b)(1)(A).                                                                  
               Applying this conclusion to the payments that were                       
          stipulated as made by Harvey either directly to or on behalf of               
          Hermine, we find that some of the payments clearly fall outside               
          the terms of the June 1 letters, which constitute the only                    
          section 71(b)(2)(B) written separation agreement established by               
          the evidence.  Specifically, the payments of $26,358.65 in 1990               
          and $25,012.55 in 1991 stipulated as having been made directly to             
          Hermine by Harvey have not been shown to come within the terms of             
          “normal and usual expenses of maintenance and operation” of the               






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