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spouse and there is no liability to make any payment
(in cash or property) as a substitute for such payments
after the death of the payee spouse.
Respondent contends that the $23,378 paid from petitioner’s
City of Lakeland retirement plans is not alimony because
petitioner does not satisfy either subparagraph (B) or (D) of
section 71(b)(1).
We first address the requirement at section 71(b)(1)(B),
which provides that a payment will not be alimony if the
governing divorce or separation instrument designates the payment
as not includable in gross income under section 71 and not
allowable as an alimony deduction under section 215. A divorce
or separation instrument “contains a nonalimony designation if
the substance of such a designation is reflected in the
instrument”. Estate of Goldman v. Commissioner, 112 T.C. 317,
323 (1999), affd. sub nom. Schutter v. Commissioner, 242 F.3d 390
(10th Cir. 2000). Generally, the divorce or separation agreement
must provide a “clear, explicit and express direction” that the
payments are not to be treated as alimony, but the designation
need not mimic the statutory language of sections 71 and 215.
Richardson v. Commissioner, 125 F.3d 551, 556 (7th Cir. 1997),
affg. T.C. Memo. 1995-554; Estate of Goldman v. Commissioner,
supra at 323.
In this case, the language of the divorce decree
unambiguously designates the payments from petitioner’s
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