Barbara Ann McMahon - Page 9




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          was for her children,2 and that the $4,000 payments should be               
          considered child support despite the lack of identification as              
          such in the court order.  However, only child support payments              
          fixed by the terms of the instrument itself are excluded from the           
          definition of alimony or separate maintenance payments; an                  
          inference cannot be made from intent or surrounding circumstances           
          that payments were for child support.  See id.                              
               Because the terms of the temporary order do not fix any                
          portion of the $4,000 payments as child support, and because the            
          payments otherwise meet the definitional requirements of section            
          71(b)(1), we hold that petitioner received $24,000 in alimony               
          income under sections 61(a)(8) and 71(a).                                   
               The next amount at issue in this case is the lump-sum                  
          payment of $10,000 which petitioner received pursuant to the                
          final settlement agreement.                                                 
               Petitioner and respondent stipulated the following statement           
          in the Stipulation of Facts filed in this case:                             
               Petitioner concedes that the $10,000 payment she                       
               received in August, 1995 is includible as taxable                      
               income for the 1995 taxable year.                                      
          This concession is not a stipulation of fact--it is a conclusion            
          of law.  As such, it does not bind this Court. See Edward D.                



          2In addition, Mr. Reed had also filed a motion with the                     
          circuit court which sought to establish “Child Support and Other            
          Temporary Relief.”  However, there is no evidence that this                 
          motion was ever argued and/or decided.                                      





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