- 17 - In general, child support cannot be inferred from intent, surrounding circumstances, or other subjective criteria for purposes of section 71. Rather, the statutory directive that child support payments be “fixed” is taken literally. The inflexibility of this requirement was recognized by the Supreme Court in Commissioner v. Lester, 366 U.S. 299 (1961). In that case, the Court refused to find by inference that the statutory requirement was met where the parties’ agreement provided for percentage reduction of payments by a husband to a wife upon the marriage, emancipation, or death of any of their three children. The Court examined the legislative history of the statutory predecessor of section 71(c)(1) and quoted from the report of the Office of the Legislative Counsel to the Senate committee which said: “If an amount is specified in the decree of divorce attributable to the support of minor children, that amount is not income of the wife .... If, however, that amount paid the wife includes the support of children, but no amount is specified for the support of the children, the entire amount goes into the income of the wife ....” * * * Commissioner v. Lester, supra at 303 (quoting Hearings before Senate Committee on Finance on H.R. 7378, 77th Cong., 2d Sess. 48) (emphasis supplied)). The Court went on to conclude: This language leaves no room for doubt. The 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 wife’s income. The statutory requirement is strict and carefully worded. It does not say that “a sufficiently clear purpose” on the part of the parties is sufficient to shift the tax. It says that the “writtenPage: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 Next
Last modified: May 25, 2011