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or separate maintenance payments must include those payments when
calculating his or her gross income. Sec. 61(a)(8).
Section 71(b)(1) defines “alimony or separate maintenance
payment” as 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, 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.
Any portion of a payment that fails to meet any one of the
four provisions “(A) through (D) as enumerated in section 71” is
not alimony and accordingly, is not deductible by petitioner.
Ribera v. Commissioner, T.C. Memo. 1997-38, was affd. without
published opinion 139 F.3d 907 (9th Cir. 1998).
Section 71(b)(2) defines a “divorce or separation
instrument” as:
(A) a decree of divorce or separate maintenance or a
written instrument incident to such a decree,
(B) a written separation agreement, or
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Last modified: May 25, 2011