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possession as of February 2002 does not imply that the monthly
payments were expressly and only for this purpose. Additionally,
there was no evidence presented of petitioner’s obligation to pay
Mr. Gutzler’s automobile insurance out of the monthly payments.
Petitioner also maintained an erroneous belief that because
she was using part of the payments to satisfy her attorney’s fees
in the underlying divorce action, these payments would not be
includable in her gross income. As previously discussed, section
71(b) provides that if a spouse receives alimony pendente lite,
the amount received must be included in the gross income of the
payee. Secs. 71(b)(1), (2)(C). Moreover, because petitioner had
unfettered discretion and control over the payments, she may not
exclude from her gross income amounts which she alone designated
for her own attorney’s fees.
Finally, while we are sympathetic to petitioner’s argument
that she would not have signed the order were it not for her
understanding that she would not have to include payments
received in her gross income, her misunderstanding is an error of
law. See secs. 61(a)(8), 71(b)(1). Accordingly, because we find
the underlying order and agreement clear, controlling, and the
exclusive statement of all of the terms of the parties’
settlement, we sustain respondent’s deficiency determination.
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