Barbara Ann McMahon - Page 5




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          the recipient’s income.  See secs. 61(a)(8) and 71(a).  The                 
          phrase “alimony or separate maintenance payments” is defined as             
          follows:                                                                    
                    SEC. 71(b)(1).  In general.--The term “alimony or                 
               separate maintenance payment” means any payment in cash if--           
                         (A) such payment is received by (or on behalf of)            
                    a spouse under a divorce or separation instrument,                
                         (B) the divorce or separation instrument does not            
                    designate such payment as a payment which is not                  
                    includible in gross income under this section and not             
                    allowable as a deduction under section 215,                       
                         (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.                                        
          In determining whether payments meet this definition, the labels            
          used by taxpayers in an instrument are not controlling.  See                
          Benedict v. Commissioner, 82 T.C. 573, 577 (1984).                          
               The first amounts at issue in this case are the six payments           
          of $4,000 each which petitioner received pursuant to the                    
          temporary order.  The temporary order stated in relevant part:              
                    As and for temporary spousal support, Husband [Mr.                
               Reed] will pay to the Clerk of the Circuit Court, St.                  
               Johns County, Florida, for disbursement to the Wife                    
               [petitioner] a monthly sum of $4,000.00 commencing on                  
               July 1, 1994 and each month thereafter until further                   
               Order of Court.  He shall also pay an additional sum of                






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