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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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