Kenneth E. Gilmore - Page 11

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                         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.                                   
               It is clear the requirements of subparagraphs (A) and (C) of           
          section 71(b) are satisfied.  Ms. Warriner received the cash                
          payments pursuant to the Amended Order and Decree of Dissolution            
          issued by the Colorado court, and she and petitioner were not               
          members of the same household.                                              
               We now consider section 71(b)(1)(B), which provides that a             
          payment will not be alimony if the divorce or separation                    
          instrument designates the payment as not includable in gross                
          income and not allowable as an alimony deduction.  The                      
          designation in the divorce or separation instrument “need not               
          specifically refer to sections 71 and 215".  Estate of Goldman v.           
          Commissioner, 112 T.C. 317, 323 (1999), affd. without published             
          opinion 242 F.3d 390 (10th Cir. 2000).  However, the “instrument            
          must contain a clear, explicit and express direction” that the              
          payments are not to be treated as alimony.  Richardson v.                   
          Commissioner, 125 F.3d 551, 556 (7th Cir. 1997), affg. T.C. Memo.           
          1995-554.  The Amended Order does not contain such language, and            
          section 71(b)(1)(B) is satisfied.                                           







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