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later refusing to assist petitioner when requested, that the
attorney receive an Admonishment for Minor Misconduct and be
required to attend a continuing legal education program sponsored
by the American Academy of Matrimonial Lawyers. The Grievance
Committee's report concluded that the attorney had "failed to
competently and diligently represent * * * [petitioner] by
properly wording the language of the Marital Settlement Agreement
so that the non-marital payments would not be taxed as income to
her after the entry of the final judgment."
Discussion
For Federal income tax purposes, an alimony or separate
maintenance payment is any payment in cash if: (a) Such payment
is received by, or on behalf of, a former spouse under a divorce
or separation instrument;2 (b) the divorce or separation
instrument does not designate such payment as a payment which is
not includible in gross income under section 71 and not allowable
as a deduction under section 215; (c) the payee spouse and the
payor spouse are not members of the same household at the time
the payment is made; and (d) there is no liability to make any
such payment, or a substitute for such payments, in cash or
2 A divorce or separation instrument means: (a) A decree of
divorce or separate maintenance or any written instrument
incident to such decree, (b) a written separation agreement, or
(c) a decree (not described in (a)) requiring a spouse to make
payments for the support or maintenance of the other spouse.
Sec. 71(b)(2)(A)-(C).
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