Alan Robert Zinsmeister - Page 12




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              We agree with respondent.  Initially, respondent correctly              
         concedes that, at least for 1994, many of the payments were made             
         on behalf of Betty.  Petitioner’s payment of $4,500 of Betty’s               
         accrued attorney’s fees were clearly made to Betty and on her                
         behalf.  See Hopkinson v. Commissioner, T.C. Memo. 1999-154.                 
              Most of the $2,414 in reimbursed miscellaneous expenses were            
         paid to Betty and on her behalf.  The language of section 71(c),             
         however, directs that some part of the miscellaneous payments are            
         nondeductible child support.  The language of section 71(c) is               
         clear that for payments to be child support, the written divorce             
         instrument by its terms must fix a sum which is payable as child             
         support.  We therefore hold that the $140 paid for Rob’s broken              
         trombone, the $100 for Nicholas’ graduation expenses, and the $60            
         for Melissa’s dental work meet the requirements of section 71(c).            
         By separately identifying those amounts, the State court’s order             
         for temporary support fixed those sums as child support under                
         section 71(c), and not alimony.  Accordingly, under section                  
         215(a), petitioner may not deduct those amounts.                             
              Different considerations come into play regarding whether               
         petitioner’s payment of the mortgages and taxes in 1994 were on              
         Betty’s behalf.  When a divorce court orders one spouse to make              
         payments on a mortgage for which both spouses are jointly liable,            
         a portion of such payments discharges the legal obligation of the            
         other spouse.  In such circumstances the payee spouse has                    






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