Mumtaz A. Ali - Page 5

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          maintenance or a written instrument incident to the decree, (2) a           
          written separation agreement, or (3) a decree requiring a spouse            
          to pay for the support or maintenance of the other spouse.  Sec.            
          71(b)(2); sec. 1.71-1(b)(1), (2), and (3), Income Tax Regs.                 
               Petitioner acknowledges that no written divorce or                     
          separation instrument existed in 2000 when SRC made the payments            
          at issue to Ali.  Petitioner contends that the section                      
          71(b)(1)(A) requirement that the payments at issue be received              
          under a divorce or separation instrument is met by the State                
          court’s retroactive approval of the stipulation that petitioner’s           
          one-half ($12,000) of each monthly payment (totaling $84,000) in            
          2000 was paid by him to Ali as family support.  Petitioner points           
          out that, under California law, the State court may retroactively           
          modify an agreement.  See In re Marriage of Skelley, 556 P.2d               
          297, 300 (Cal. 1976)                                                        
          B.   Whether Retroactive Treatment by the State Court of Payments           
               as Unallocated Family Support Meets the Requirement of                 
               Section 71(b)(1)(A) That the Payments Be Received Under a              
               Divorce or Separation Instrument                                       
               Petitioner contends that, because of the retroactive action            
          by the State court, the payments from SRC to Ali in 2000 were               
          payments under a divorce or separation instrument.                          
               We disagree for two reasons.  First, payments made before              
          the existence of a written divorce or separation instrument are             
          not deductible by the payor spouse under section 215 or its                 
          predecessor.  Healey v. Commissioner, 54 T.C. 1702, 1705-1706               





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