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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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