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Consequently, sections 71 and 215, as amended by DEFRA, govern
the payments in issue.
Section 215(a) allows an individual, in computing adjusted
gross income, to deduct amounts paid during the year if those
amounts are includable in the gross income of the recipient under
section 71(a). Section 215 provides in relevant part:
SEC. 215. ALIMONY, ETC., PAYMENTS.
(a) General Rule.--In the case of an individual, there
shall be allowed as a deduction an amount equal to the
alimony or separate maintenance payments paid during such
individual’s taxable year.
(b) Alimony or Separate Maintenance Payments Defined.--
For purposes of this section, the term “alimony or separate
maintenance payment” means any alimony or separate
maintenance payment (as defined in section 71(b)) which is
includible in the gross income of the recipient under
section 71.
Therefore, any disqualification from inclusion by the recipient
spouse under section 71 will automatically preclude deduction by
the payor under section 215. Consequently, the recipient of
alimony payments must include those payments when calculating his
or her gross income. Sec. 61(a)(8). However, payments to
support children generally are not deductible. Sec. 71(c)(1).
Therefore, a determination that a payment is or is not “alimony”
is also a determination of who must shoulder the tax burden of
that payment.
Section 71(a) provides that “Gross income includes amounts
received as alimony or separate maintenance payments.” As
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