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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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