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Discussion
The parties dispute whether the payments received by
petitioner from Leonard Kersh are separate maintenance payments
under section 71.
Section 71(a) provides that gross income generally includes
amounts received as alimony or separate maintenance payments.
Section 71(b)(1) defines alimony or separate maintenance payment
as 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.
Respondent maintains that the payments received by
petitioner are gross income under section 71(a) because the
payments were for temporary maintenance. Petitioner contends
that the payments received are not included in gross income
because the payments are not separate maintenance payments under
section 71(b)(1)(D). Petitioner’s position is that the pension
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Last modified: May 25, 2011