- 5 - (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 (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, section 71(c) provides, in pertinent part, for no deduction of any payment which is payable “for the support of children of the payor spouse.” In this case, the monthly payments prescribed under the Judgment fail to comport with section 71. First, there is no provision in the Judgment, in accordance with section 71(b)(1)(B), indicating whether the parties intended either the whole or part of the “unallocated support and maintenance payments” to be included in income by Ms. Dillon and deducted by petitioner. Second, there is no provision in the Judgment imparting liability to petitioner to make payment for any period after Ms. Dillon’s death in accordance with section 71(b)(1)(D).Page: Previous 1 2 3 4 5 6 7 8 NextLast modified: November 10, 2007