Donald Tobkin - Page 7

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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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