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employment, approximately 9 years from this date.” The divorce
decree is silent as to whether the payments are to terminate upon
petitioner’s death.
In 2002, petitioner received payments from Wolf totaling
$9,600. Wolf deducted the payments as alimony on his 2002 income
tax return. Petitioner did not include the $9,600 as alimony
income on her 2002 return.
Discussion
The parties dispute whether the payments received by
petitioner from Wolf are taxable to her under section 71.
Resolution of this dispute depends on whether the payments, as a
matter of law, terminate on the death of petitioner.
Section 71(a) provides that gross income generally includes
amounts received as alimony or separate maintenance payments.
Section 71(b)(1) defines “alimony or separate maintenance
payment” as any payment in cash if--
(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
includible 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
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Last modified: May 25, 2011