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received by a spouse1 under a divorce decree; (2) the divorce
decree does not state that the payment is neither includable in
gross income nor allowable as a deduction; (3) the payor and
payee spouses are not members of the same household when the
payment is made; and (4) the payment obligation terminates at the
death of the payee spouse and there is no liability to make
either a cash or a property payment as a substitute for the
payment after the death of the payee spouse.
The parties agree with respect to the principles just
stated, but they disagree as to whether the family support
payments fit within the definition of “alimony”. Petitioner
takes the position that all of the above-mentioned section
71(b)(1) requirements have been satisfied and, therefore, the
family support payments constitute “alimony” within the meaning
of sections 71 and 215. Respondent disagrees and argues that the
payments do not fit within the definition of “alimony” because:
(1) “The payments are not designated [in the divorce decree] as
includable in income to the payee and deductible by the payor”
(the designation argument); (2) petitioner has failed to
establish that the family support payments would terminate upon
the death of his former spouse (the termination argument); and
1 For purposes of sec. 71, the term “spouse” includes a
former spouse. Sec. 71(d).
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Last modified: May 25, 2011