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qualifies under any other exception. He alone is responsible for
the section 72(t) additional tax. Respondent is sustained on
this issue.
The second issue is whether petitioner is entitled to a
deduction for the $17,900 paid to his former spouse during 1997
as alimony. Amounts received as alimony or separate maintenance
are includable in the recipient’s gross income under sections
61(a)(8) and 71(a) and are deductible by the payor under section
215(a) in the year paid. On the other hand, payments
representing a property settlement are neither deductible to the
payor nor includable in income by the recipient. Sec. 1041. For
tax purposes, the term “alimony or separate maintenance payment”
is defined in section 71(b)(1) as any payment in cash meeting the
following four criteria:
(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 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.
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Last modified: May 25, 2011