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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.
Respondent contends that petitioner fails to satisfy
subparagraph (B) of section 71(b)(1) because the divorce decree
designates the $1,000 monthly payments as not includable in Ms.
Reichner’s gross income and not allowable as a deduction under
section 215. A divorce or separation instrument “contains a
nonalimony designation if the substance of such a designation is
reflected in the instrument.” Estate of Goldman v. Commissioner,
supra at 323. Generally, the divorce or separation agreement
must provide a “clear, explicit and express direction” that the
payments are not to be treated as alimony, but the designation
need not mimic the statutory language of sections 71 and 215.
Richardson v. Commissioner, 125 F.3d 551, 556 (7th Cir.1997),
affg. T.C. Memo. 1995-554; Estate of Goldman v. Commissioner,
supra at 323.
In this case, the divorce decree unambiguously designates
the payments from petitioner’s retirement benefits as nonalimony.
It provides that the payments are to be made “as [a] property
settlement” and that the “parties specifically agree to waive,
renounce and relinquish * * * any and all rights or claims either
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