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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.
Petitioner’s deduction for alimony is allowable only if all
four criteria of section 71(b)(1) are met. Jaffe v.
Commissioner, T.C. Memo. 1999-196. Thus, for our purposes here,
if the divorce decree or the Act of Partition provides that the
payment by one spouse to the other spouse is not includable in
the gross income of the receiving spouse and is not allowable as
a deduction to the payer spouse, the payments do not constitute
deductible alimony. Sec. 71(b)(1)(B). Neither of these
documents contained such a provision.
Petitioner’s argument that his former wife wanted spousal
support, and his payments to her were a fulfillment of that
desire, does not change the character of the payments to
constitute the payments as alimony. In Richardson v.
Commissioner, 125 F.3d 551, 556 (7th Cir. 1997), affg. T.C. Memo.
1995-554, the Court of Appeals for the Seventh Circuit stated:
“For a legal instrument to make known directly that a spouse’s
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