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(A) such payment is received by (or on behalf
of) a spouse under a divorce or separation
instrument,
(B) the divorce or separation instrument does
not designate such payment as a payment which is
not includable in gross income under this section
and not allowable as a deduction under section
215,
(C) in the case of an individual legally
separated from his spouse under a decree of
divorce or of separate maintenance, the payee
spouse and the payor spouse are not members 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.
Petitioners’ deduction for alimony is allowable only if all
four criteria of section 71(b)(1) are met. Jaffe v.
Commissioner, T.C. Memo. 1999-196. Thus, for our purposes here,
if the divorce or separation instrument provides that the payment
by one spouse to the other spouse is not includable in the gross
income of the receiving spouse and is not allowable as a
deduction to the payer spouse, the payments do not constitute
deductible alimony. Sec. 71(b)(1)(B).
Respondent contends that Mr. Vanarsdall’s payments to the
former spouse do not constitute alimony because the parties
specifically stated in Article III, section 18 of the Agreement
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Last modified: May 25, 2011