- 5 - 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, 1705-1706Page: Previous 1 2 3 4 5 6 7 8 9 Next
Last modified: May 25, 2011