Thomas Clarence and Claudia Ellen Maloney - Page 5




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                         (d) * * * [petitioner] shall hold * * * [Ms.                 
               Maloney] free, harmless and indemnified against any                    
               state or federal taxes due and owing in connection with                
               the gross amount paid by the United States Navy to * *                 
               * [petitioner] less the sum of $47,900.00 which is the                 
               responsibility of * * * [Ms. Maloney].                                 
               Petitioner paid Ms. Maloney the $47,900 in 1993.                       
                                     Discussion                                       
               We must determine whether petitioners may deduct the $47,900           
          payment as alimony.2  Respondent determined they could not.                 
          Petitioners must prove respondent’s determination wrong in order            
          to prevail.  See Rule 142(a); Welch v. Helvering, 290 U.S. 111,             
          115 (1933); see also Preston v. Commissioner, T.C. Memo. 1999-49,           
          affd. in part, revd. in part and remanded 209 F.3d 1281 (11th               
          Cir. 2000).                                                                 
               An individual may generally deduct a payment made during the           
          taxable year to a former spouse to the extent it is alimony that            
          is includable in the former spouse’s gross income.  See sec.                
          215(a) and (b).  A payment is alimony that is includable in a               
          former spouse’s gross income when:  (1) The payment is made in              
          cash, (2) the payment is received by (or on behalf of) the former           
          spouse under a divorce or separation instrument, (3) the divorce            
          or separation instrument does not designate that the payment is             
          not to be treated as alimony, (4) the former spouses reside in              


               2 Petitioners do not dispute that this payment is includable           
          in their gross income, relying solely on their position that it             
          was paid to Ms. Maloney and is deductible as alimony.                       





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