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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
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.
In order to qualify for an alimony deduction, petitioner
must first show that the $23,400 at issue was a “payment in
cash”. Sec. 71(b)(1). The temporary regulations promulgated
under section 71(b) specify that in order for a cash payment to
qualify as alimony, an actual payment by either cash, check, or
money order must occur. Sec. 1.71-1T(b), Q&A-5, Temporary Income
Tax Regs., 49 Fed. Reg. 34455 (Aug. 31, 1984).2 At trial,
petitioner testified that he did not remit the $23,400 at issue
in cash, check, or money order but rather waived that amount from
the total $73,000 of buyout equity owed for his share of the
2 Temporary regulations are entitled to the same weight as
final regulations. See Peterson Marital Trust v. Commissioner,
102 T.C. 790, 797 (1994), affd. 78 F.3d 795 (2d Cir. 1996).
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Last modified: May 25, 2011