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Payments to support children generally are not deductible.
Sec. 71(c). However, alimony or separate maintenance payments
generally are deductible by the payor spouse. Sec. 215. Alimony
or separate maintenance payments are defined by section 71(b),
which 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--
(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.
In the present case, the parties focus on whether the
requirements of section 71(b)(1)(D) have been satisfied. These
requirements are satisfied if petitioner had “no liability to
make any such payment for any period after the death of the payee
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Last modified: May 25, 2011