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instrument” must “fix” that “portion of the payment” which
is to go to the support of the children. Otherwise, the
wife must pay the tax on the whole payment. We are obliged
to enforce this mandate of the Congress.
Id. Consequently, in the case of unallocated or undifferentiated
support for a wife and children, none of the amount is treated as
child support under section 71(c)(1).
In applying the principle of Lester, this Court has
repeatedly refused to allow inference, intent, or other
nonspecific designations of payments as child support to override
the clear rule of section 71(c)(1). See, e.g., Mass v.
Commissioner, 81 T.C. 112, 123 (1983); Blakey v. Commissioner, 78
T.C. 963 (1982); Giordano v. Commissioner, 63 T.C. 462 (1975);
Grummer v. Commissioner, 46 T.C. 674 (1966).
DEFRA changed the portion of the Lester decision that held
that no amount would be considered child support unless it was
specifically designated as such in the divorce or separation
agreement.
Under the current statute, if any amount specified in the
instrument will be reduced: (1) Upon the happening of a
contingency related to a child of the payor, or (2) at a time
which can clearly be associated with such a contingency, then the
amount of the specified reduction will be treated as child
support rather than alimony. Sec. 71(c). The above principle
was recognized in Berry v. Commissioner, T.C. Memo. 2005-91,
where we stated:
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