Patricia P. Kean - Page 5

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          based upon the available facts that formed the basis for the                
          position, as well as any controlling legal precedent.  Id.  The             
          fact that the Commissioner ultimately concedes an issue does not,           
          by itself, establish that his prior position with respect to that           
          issue was unreasonable.  Id.  However, it is a factor that may be           
          considered.  Id.                                                            
               As an initial matter, respondent argues that he is “entitled           
          to take inconsistent positions against former spouses in the                
          alimony context.”  We agree with respondent.  Inconsistent                  
          determinations may be made against the former spouses in order to           
          protect the revenue in a “whipsaw” situation.  See Doggett v.               
          Commissioner, 66 T.C. 101, 103 (1976); Marten v. Commissioner,              
          T.C. Memo. 2000-186; Ryan v. Commissioner, T.C. Memo. 1999-109.             
          Inconsistent positions were appropriate in this case.                       
               Respondent cites Gonzales v. Commissioner, T.C. Memo. 1999-            
          332, as justification for the position taken in his answer that             
          the payments made by Mr. Kean were not alimony.  Based on the               
          particular facts in Gonzales, this Court held that the                      
          unallocated support payments there did not constitute alimony               
          under section 71.  As in the instant case, the payments in that             
          case were made pursuant to an order of a New Jersey court, and              
          this Court applied New Jersey law in its determination as to                
          whether the payments constituted alimony under section 71.                  

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