- 7 - 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 decreePage: Previous 1 2 3 4 5 6 7 8 9 NextLast modified: November 10, 2007