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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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Last modified: May 25, 2011