Carrie A. Lesnik - Page 6




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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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