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payor spouse. Payments representing a division of marital
property are not deductible by the payor spouse and are not
includable in income by the payee spouse. See sec. 1041. On the
other hand, individuals are allowed a deduction equal to alimony
or separate maintenance payments made during the taxable year.
Sec. 215(a). Alimony or separate maintenance payments are
defined in section 71(b) and must be included in the gross income
of the recipient under section 71. Sec. 215(b). An alimony or
separate maintenance payment is any payment in cash if: (a) Such
payment is received by, or on behalf of, a former spouse under a
divorce or separation instrument;2 (b) the divorce or separation
instrument does not state that the payment is not includable in
income under section 71 and not allowable as a deduction under
section 215; (c) the payee and payor spouses are not members of
the same household at the time of the payment; and (d) there is
no liability to make any such payments 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. Sec. 71(b)(1)(A)-(D). The test under
section 71(b)(1) is conjunctive; a payment is deductible as
2A divorce or separation instrument means: (a) A decree of
divorce or separate maintenance or any written instrument
incident to such decree, (b) a written separation agreement, or
(c) a decree (not described in (a)) requiring a spouse to make
payments for the support or maintenance of the other spouse.
Sec. 71(b)(2)(A)-(C).
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Last modified: May 25, 2011