Robert F. Dillon - Page 6




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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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