Obie Harris and Quincy Ramsay - Page 8




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               We must determine which of the payments directed by the                
          first temporary order and the divorce decree qualify as alimony             
          under the requirements of section 71(b).  Respondent does not               
          contest that Mr. Harris made the monthly $439 spousal support               
          payments directed by the divorce decree, and it is clear that               
          these payments, totaling $1,317, constitute alimony or separate             
          maintenance payments.                                                       
               With regard to the mortgage payments, we considered a                  
          similar situation in Zinsmeister v. Commissioner, supra, where we           
          stated:                                                                     
                    Different considerations come into play regarding                 
               whether petitioner’s payment of the mortgages * * *                    
               were on * * * [the spouse’s] behalf.  When a divorce                   
               court orders one spouse to make payments on a mortgage                 
               for which both spouses are jointly liable, a portion of                
               such payments discharges the legal obligation of the                   
               other spouse.  In such circumstances the payee spouse                  
               has received income under the general principle of Old                 
               Colony Trust Co. v. Commissioner, 279 U.S. 716 (1929)                  
               (payment by a third party of a person’s legal                          
               obligation is taxable income to that person).                          
               Accordingly, in such cases, one-half of the mortgage                   
               payment is includable in the gross income of the payee                 
               spouse and, to the extent it otherwise qualifies as                    
               alimony, it is deductible by the payor spouse as                       
               alimony.  See Taylor v. Commissioner, 45 T.C. 120, 123-                
               124 (1965); Simpson v. Commissioner, T.C. Memo. 1999-                  
               251; Zampini v. Commissioner, T.C. Memo. 1991-395; Rev.                
               Rul. 67-420, 1967-2 C.B. 63; see also sec. 1.71-1T(b),                 
               Q&A-6, Temporary Income Tax Regs., 49 Fed. Reg. 34455                  
               (Aug. 31, 1984).                                                       
               We find that one-half of each of the eight $561 monthly                
          payments made by Mr. Harris during 2002 as directed by the common           
          pleas court in the first temporary order and the divorce decree             







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