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The first issue is whether petitioner is entitled to an
alimony deduction in excess of the amounts allowed by respondent.
The facts as to this issue are not in dispute; the issue is one
of law. Therefore, with respect to the burden of proof, the
Court need not address the applicability of section 7491. Higbee
v. Commissioner, 116 T.C. 438 (2001).
Section 71(a) provides generally that alimony payments are
included in the gross income of the payee spouse, and section
215(a) provides generally that alimony payments are deductible by
the payor spouse. Section 215(b) provides in pertinent part that
the term "alimony" means any alimony, as defined in section
71(b), which is includable in the gross income of the recipient
under section 71. Section 71(b) defines alimony as follows:
SEC. 71(b). Alimony or Separate Maintenance Payments
Defined.--For purposes of this section–-
(1) In general.--The term "alimony or separate
maintenance payment" means any payment in cash if–-
(A) such payment is received by (or on behalf of)
a spouse under a divorce or separation instrument,
(B) the divorce or separation instrument does not
designate such payment as a payment which is not
includible in gross income under this section and not
allowable as a deduction under section 215,
(C) in the case of an individual legally separated
from his spouse under a decree of divorce or of
separate maintenance, the payee spouse and the payor
spouse are not members of the same household at the
time such payment is made, and
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