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Therefore, the only dispute is whether the $2,000 was paid as
alimony or child support.
Ms. Bader contends that she received alimony of only $16,000
in 2002. She takes the position that any payments in excess of
$16,000 were either voluntary or child support and did not
constitute alimony within the meaning of section 71(b)(1).
A. Whether the Initial Payment Qualifies as
Alimony Under Section 71(b)
Section 215(a) allows a deduction for the payment of alimony
during a taxable year. Section 215(b) defines alimony as a
payment that is includable in the gross income of the recipient
under section 71. Section 71(a) provides that gross income
includes amounts received as alimony or separate maintenance
payments. Under section 71(b)(1), the term “alimony or separate
maintenance payment” means any cash payment 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.
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