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“Alimony or separate maintenance payments” are deductible by
the payer in the year paid if they are includable in the payee
spouse’s gross income under section 71. Sec. 215(a) and (b).
Subject to further requirements not relevant here, the phrase
“alimony or separate maintenance payment” is defined as “any
payment in cash if * * * such payment is received by (or on
behalf of) a spouse under a divorce or separation instrument”.
Secs. 215(a), 71(b)(1)(A). Thus, payments of cash to third
parties on behalf of the payee spouse may qualify as alimony or
separate maintenance payments. Sec. 71(b)(1)(A). However, the
payments must be made pursuant to the terms of the divorce or
separation instrument. Id.; sec. 1.71-1T(b), Q&A-6 and 7,
Temporary Income Tax Regs., 49 Fed. Reg. 34455 (Aug. 31, 1984).
If the payments instead are made in lieu of payments required to
be made to the spouse, they qualify as alimony or separate
maintenance payments only if they are made pursuant to a written
request, consent, or ratification from the payee spouse. Id.
Finally, a payment is not includable in the payee spouse’s gross
income under section 71 if it is fixed by the divorce or
separation instrument as payable for the support of the payer
spouse’s children. Sec. 71(c)(1).
The mortgage and tax payments were not made pursuant either
to a divorce or separation instrument or to a written request,
consent, or ratification from Ms. Feriante. Further, whether Ms.
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Last modified: May 25, 2011