Jane Gilbert - Page 6




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                                     Discussion                                       
               We must decide whether all or any part of the predivorce               
          unallocated support payments made by Mr. Hawley to Ms. Gilbert              
          qualify as alimony to the payee spouse, Ms. Gilbert, includable             
          in gross income under sections 61(a)(8)6 and 71(a)7 and                     
          deductible by the payor spouse, Mr. Hawley, under section 215.8             
               To be considered alimony unallocated support payments must             
          conform to the requirements of section 71(b).  Lovejoy v.                   
          Commissioner, 293 F.3d 1208 (10th Cir. 2002), affg. Miller v.               
          Commissioner, T.C. Memo. 1999-273; Zinsmeister v. Commissioner,             
          T.C. Memo. 2000-364; Gonzales v. Commissioner, T.C. Memo. 1999-             
          332.  Section 71(b) provides in part:                                       
                    SEC. 71(b).  Alimony or Separate Maintenance                      
               Payments Defined.-–For purposes of this section–-                      
                    (1) In general.–-The term “alimony or separate                    
               maintenance payment” means any payment in cash if–                     


               6    SEC. 61(a).  General Definition.--Except as otherwise             
               provided in this subtitle, gross income means all income               
               from whatever source derived, including (but not limited to)           
               the following items:                                                   
                         *    *    *    *    *    *    *                              
                    (8) Alimony and separate maintenance payments; * * *              
               7    SEC. 71(a).  General Rule.-–Gross income includes                 
               amounts received as alimony or separate maintenance                    
               payments.                                                              
               8    SEC. 215(a).  General Rule.–-In the case of an                    
               individual, there shall be allowed as a deduction an amount            
               equal to the alimony or separate maintenance payments paid             
               during such individual’s taxable year.                                 




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