Gerald Barlow - Page 8

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          retirement plan benefits as nonalimony.  Petitioner’s former wife           
          was awarded a one-half interest in petitioner’s retirement plan             
          benefits pursuant to paragraph 1 of the divorce decree, which               
          began:  “Equitable distribution of marital assets shall be as               
          follows”.  Among the items of marital assets subject to equitable           
          distribution were petitioner’s retirement plan benefits, as                 
          specifically addressed in paragraph 1.d.4 of the divorce decree.            
          While the Florida circuit court also specifically granted alimony           
          to petitioner’s former wife, this award was made pursuant to                
          paragraph 2 of the divorce decree and was not part of the Florida           
          circuit court’s equitable distribution of marital assets.                   
               We conclude that the divorce decree clearly, explicitly, and           
          expressly designated the payments from petitioner’s retirement              
          plans as nonalimony payments.4                                              
               Since petitioner does not satisfy subparagraph (B) of                  
          section 71(b)(1), it is unnecessary to consider subparagraph (D)            
          of the same section.  Respondent’s determination that petitioner            
          is not entitled to an alimony deduction in 2000 is sustained.               

               4  Moreover, the Florida circuit court, in a postdivorce               
          hearing convened on Feb. 28, 1992, to address petitioner’s                  
          request to modify the divorce decree’s distribution of his                  
          retirement plan benefits, concluded that the distribution was “a            
          property plan distribution the court made” and that the decision            
          “was not modifiable because it’s not alimony”.                              

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