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(C) in the case of an individual legally separated
from his spouse under a decree of divorce or of
separate maintenance, the payee spouse and the payor
spouse are not members of the same household at the
time such payment is made, and
(D) there is no liability to make any such payment
for any period after the death of the payee spouse and
there is no liability to make any payment (in cash or
property) as a substitute for such payments after the
death of the payee spouse. [Sec. 71(b)(1).]
Child support is that part of a payment which the divorce or
separation instrument fixes as payable for the support of the
children of the payor spouse. See sec. 71(c)(1). An amount is
treated as fixed under section 71(c)(1) and thus treated as child
support if it will be reduced "on the happening of a contingency
specified in the instrument relating to a child (such as
attaining a specified age, marrying, dying, leaving school, or a
similar contingency)”. Sec. 71(c)(2)(A).
Respondent maintains that petitioner’s payments to his
former spouse are not alimony within the meaning of section 71(b)
and thus are not deductible. Petitioner, on the other hand,
maintains that the payments were made in accordance with the
provision in the Agreement calling for “spousal support, alimony
and maintenance” and that the Agreement had a separate provision
providing for child support. Petitioner also points out that his
“alimony” payments to his former spouse were not reduced, as were
the payments required under the Agreement for child support, in
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Last modified: May 25, 2011