Antoinette J. Dato-Nodurft - Page 6

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               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.            








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