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In the notice of deficiency for the taxable year 2003, respondent
determined that petitioner “did not establish that the amount
shown was (a) alimony and (b) paid”.
Discussion5
Section 215(a) allows a deduction for alimony payments paid
during the payor’s taxable year. Section 215(b) defines alimony
as payment which is includable in the gross income of the
recipient under section 71. Section 71(b) provides a four-step
inquiry for determining whether a cash payment is alimony.
Section 71(b) provides:
SEC. 71(b). Alimony or Separate Maintenance
Payments Defined.–-For purposes of this section--
(1) In general.--The term “alimony or
separate maintenance payment” means 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,
5 We need not decide whether sec. 7491, concerning burden
of proof, applies in this case because petitioner did not allege
that sec. 7491 was applicable, and the issue is essentially legal
in nature. See Higbee v. Commissioner, 116 T.C. 438 (2001).
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