- 6 -
Petitioner contends that the separation agreement she and
Mr. Nodurft executed was not legally binding, and that payments
made pursuant to the separation agreement should not be
considered alimony. Petitioner asserts in the petition that
“Petitioner and Former Husband were advised in the office of the
Judge Advocate of Kaneohe Bay, Hawaii, USMCB, said ‘separation’
documents were not legally binding as they are not issued from a
civilian court of law.”
Petitioner’s contention fails to appreciate that a payment
made pursuant to a written separation agreement may be alimony
under section 71 even though the agreement may not be an
enforceable instrument under State law. See sec. 1.71-
1(b)(2)(i), Income Tax Regs.; see also Richardson v.
Commissioner, 125 F.3d 551 (7th Cir. 1997), affg. T.C. Memo.
1995-554; Benham v. Commissioner, T.C. Memo. 2000-165. The term
“written separation agreement” is not defined by the Code. See
Jacklin v. Commissioner, 79 T.C. 340, 346 (1982); Benham v.
Commissioner, supra; Leventhal v. Commissioner, T.C. Memo. 2000-
92. A written separation agreement is a clear, written statement
of the terms of support for separated parties. See Bogard v.
Commissioner, 59 T.C. 97, 101 (1972). A separation agreement
requires mutual assent of the parties. Kronish v. Commissioner,
90 T.C. 684, 693 (1988); see also Benham v. Commissioner, supra.
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: May 25, 2011