- 22 - 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 werePage: Previous 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 Next
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