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(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).
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Last modified: November 10, 2007