Antoinette J. Dato-Nodurft - Page 8

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          Commissioner, 242 F.3d 390 (10th Cir. 2000); Medlin v.                      
          Commissioner, T.C. Memo. 1998-378; see also sec. 1.71-1T(b), Q&A-           
          8, Temporary Income Tax Regs., 49 Fed. Reg. 34455 (Aug. 31,                 
          1984).  We conclude that the separation agreement between                   
          petitioner and Mr. Nodurft fails to designate that the payments             
          to petitioner are not to be deductible by him under section 215             
          or includable in her gross income under section 71.  The                    
          provisions of the separation agreement entitled “Tax Matters”               
          require petitioner and Mr. Nodurft to file a joint return if                
          doing so would result in a lower tax liability than if they each            
          filed a separate return.  The agreement does not require that the           
          payments by him to her be treated as other than alimony.                    
               On the basis of the foregoing, we conclude that the payment            
          petitioner received from her former husband is alimony and is               
          includable in her income pursuant to section 71.                            
               To reflect the foregoing,                                              

                                             Decision will be entered for             
                                        respondent.                                   















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