Gerald Barlow - Page 7

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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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