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(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.
The test under section 71(b)(1) is conjunctive; a payment is
deductible as alimony only if all four requirements of section
71(b)(1) are present. See Jaffe v. Commissioner, T.C. Memo.
1999-196. Moreover, any payment which is payable for the support
of children of the payor spouse is neither includable in income
under section 71 nor deductible under section 215. Section
71(c)(2) provides that if any amount specified in the divorce or
separation instrument will be reduced on the happening of a
contingency relating to a child, such as attaining a specified
age, the amount of the reduction will be treated as child
support.
In this case, because the monthly payment prescribed in the
Judgment is for “unallocated child support” it is clear that
these payments were for child support only. The Judgment, in
fact, ends these payments upon the youngest child’s 19th
birthday. In short, all of these payments were child support,
and petitioner is not entitled to any deduction for the payments
pursuant to section 71(c).
Moreover, we are unconvinced by petitioner’s argument that
the intent of the parties is not reflected in the Judgment
because the term “unallocated child support” is oxymoronic and
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Last modified: November 10, 2007