Hermine Leventhal - Page 22




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          two residences.  Likewise, the payments of $891.30 in 1990 and                
          $3,623.49 in 1991 that are described as “car payments” in the                 
          stipulations do not come within the terms of the June 1 letters.              
          The letters make no mention of car payments, and we do not                    
          believe such payments come within any fair reading of “normal and             
          usual expenses of maintenance and operation” of the marital home              
          or apartment.  Thus the direct payments to Hermine and the car                
          payments were not made “under” a divorce or separation instrument             
          and therefore are not includable in the gross income of Hermine               
          under section 71(a) nor deductible by Harvey under section                    
          215(a).                                                                       
               However, the mortgage payments on the marital home and rent              
          for the apartment clearly do come within the terms of the written             
          separation agreement embodied in the June 1 letters and therefore             
          were made “under” a divorce or separation instrument.  We believe             
          the remaining payments, with certain exceptions in the case of                
          “insurance payments”, were also made under the terms of the June              
          1 letters-–that is, based on the available evidence, they may                 
          fairly be inferred as constituting “normal and usual expenses of              
          maintenance and operation” of the two residences.  We base this               
          conclusion on their stipulated descriptions (relating to                      
          utilities, a gardener, a pool, etc.), the undisputed facts that               
          Hermine owned the marital home and regularly occupied it as well              
          as the apartment, and on the stipulation that these payments were             






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