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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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