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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 “written
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