Lawrence Robert Gamer - Page 6

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                    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.                                        

          Accordingly, if the payment made by petitioner fails to meet any            
          one of the four enumerated criteria, that payment is not alimony            
          and is not deductible by petitioner.                                        
               The parties agree that petitioner’s $37,000 payment to Ms.             
          Gamer satisfies the requirements set forth in section                       
          71(b)(1)(A), (B), and (C).  On the other hand, the parties                  
          dispute whether the requirements of section 71(b)(1)(D) have been           
          satisfied.                                                                  
               The history of section 71(b)(1)(D) establishes that it was             
          enacted to distinguish alimony, deductible by the payor and                 
          includable in the payee’s gross income, from payments in the                
          nature of property settlements, which are nondeductible by the              






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