Scott W. Denniston - Page 4




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         Settlement Agreement which was attached to the Decree of                     
         Dissolution of Marriage, petitioner agreed that his child support            
         payments were in arrears.  In April of 2003, petitioner owed back            
         child support payments of $14,777.08.                                        
              On August 24, 2005, respondent issued to petitioner a notice            
         of deficiency disallowing the alimony deduction, determining that            
         petitioner failed to substantiate that he made any alimony                   
         payments during 2002.                                                        
                                     Discussion                                       
              Petitioner bears the burden of proving that respondent’s                
         determinations in the notice are erroneous.  Rule 142(a); Welch              
         v. Helvering, 290 U.S. 111, 115 (1933).1                                     
              Section 215(a) allows a deduction for the payment of alimony            
         during a taxable year.  Section 215(b) defines alimony as a                  
         payment that is includable in the gross income of the recipient              
         under section 71.  Section 71(a) provides that gross income                  
         includes amounts received as alimony or separate maintenance                 
         payments.                                                                    
              Under the temporary order, petitioner was obligated to pay              
         to Ms. Katcher alimony payments of $500 per month.  Although not             
         specified in the temporary order, petitioner claims that the                 

               1Petitioner has not raised the issue of sec. 7491(a), which            
          shifts the burden of proof to the Commissioner in certain                   
          situations.  This Court concludes that sec. 7491 does not apply             
          because petitioner has not produced any evidence that establishes           
          the preconditions for its application.                                      






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