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Discussion
The Commissioner’s determinations are presumed correct, and
taxpayers generally bear the burden of proving otherwise. Welch
v. Helvering, 290 U.S. 111, 115 (1933). Petitioner did not argue
that section 7491 is applicable in these cases, nor did he
establish that the burden of proof should shift to respondent.
Moreover, the issue involved in these cases, alimony, is a legal
one to be decided on the record without regard to the burden of
proof. Petitioner, therefore, bears the burden of proving that
respondent’s determinations in the notices of deficiency are
erroneous. See Rule 142(a); Welch v. Helvering, supra at 115.
An individual may deduct from his or her gross income the
payments he or she made during a taxable year for alimony or
separate maintenance. Sec. 215(a).
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
includable 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
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Last modified: November 10, 2007