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1. Deductibility of Petitioner’s Payments to His Former Spouse
Section 215(a) provides generally that alimony payments are
deductible by the payor spouse. Under section 215(b), “alimony”
means any alimony, as defined in section 71(b), which is
includable in the gross income of the recipient under section 71.
Under section 71(b), the term “alimony or separate maintenance
payment” is defined in section 71(b)(1) as any payment in cash
meeting the following four criteria:
(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
(D) there is no liability to make any such payment for any
period after the death of the payee 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.
Petitioner’s deduction for alimony is allowable only if the four
criteria of section 71(b)(1) are met. Jaffe v. Commissioner,
T.C. Memo. 1999-196.
Section 71(b)(1)(D) requires, as a condition to qualify as
alimony, that the obligation to make payments must terminate upon
the death of the former spouse. If the payor is liable for even
one otherwise qualifying payment after the recipient’s death,
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Last modified: May 25, 2011