Mark E. Picou - Page 7

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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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