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whether or not the payments were intended to be support earmarked
for the petitioner’s children does not alter the Federal income
tax consequences of the express terms of the divorce judgment.
Section 71(a)3 lists several requirements which must be met
in order to characterize payments made pursuant to a divorce
decree as alimony payments for purposes of Federal tax law. If
the requirements of section 71(a) are met, the payments generally
must be included in the payee spouse’s income, whether or not the
payments are “alimony” for purposes other than Federal tax law.
However, section 71(b) provides an exception to the general rule
for certain child support payments. It provides:
SEC. 71(b). Payments to Support Minor Children.--
Subsection (a) shall not apply to that part of any payment
which the terms of the decree, instrument, or agreement fix,
in terms of an amount of money or a part of the payment, as
a sum which is payable for the support of minor children of
the husband. * * *
The statute clearly requires that the divorce instrument
expressly fix the amount of child support; in the absence of such
an express provision, the exception under section 71(b) does not
3Because the divorce judgement in this case was entered
prior to 1985, we apply the provisions of sec. 71 which were
applicable before the changes made by the Deficit Reduction Act
of 1984 (DEFRA), Pub. L. 98-369, sec. 422(e), 98 Stat. 798. We
note that the amount of the family support payments required by
the judgment in this case was modified at least once after 1984.
However, a post-1984 modification of a pre-1985 judgment does not
cause the DEFRA changes to apply unless the modification
expressly so provides. See id. at sec. 422(e)(2); see also
Libman v. Commissioner, T.C. Memo. 1990-629. Nothing in the
record indicates such a provision existed in this case.
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