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which is, in terms of money or property, specified in the decree
or instrument” were not considered periodic payments. Sec.
22(k), I.R.C. 1939, supra; see also sec. 71(c)(1), I.R.C. 1954,
supra (substantially identical language).
While the exception (to the general rule of inclusion) for
child support did not state that only amounts “fixed” as child
support in the divorce or separation instrument were treated as
such for tax purposes, that was clearly the intent of Congress:
If, however, the periodic payments * * * are received
by the wife for the support and maintenance of herself
and of minor children of the husband without such
specific designation of the portion for the support of
such children, then the whole of such amount is
includible in the income of the wife [i.e., is treated
as alimony] as provided in section 22(k) * * *.
H. Rept. 2333, 77th Cong., 1st Sess. (1942), 1942-2 C.B. 372,
429; S. Rept. 1631, 77th Cong., 2d Sess. (1942), 1942-2 C.B. 504,
570.8 The Supreme Court gave effect to that intent in
Commissioner v. Lester, 366 U.S. 299 (1961), holding that “[t]he
agreement must expressly specify or ‘fix’ a sum certain or
percentage of the payment for child support before any of the
payment is excluded from the * * * [payee spouse’s] income [i.e.,
8 Regulations issued within 2 months of the enactment of the
1942 Act parroted the language quoted above. See sec. 19.22(k)-
1(d), Regs. 103, as amended by T.D. 5194, 1942-2 C.B. 53, 59-60;
see also sec. 1.71-1(e), Income Tax Regs. (identical except for
statutory reference).
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