Kenneth W. and Waldraut N.Hinson - Page 5




                                        - 4 -                                         
                         includable in gross income * * * 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.                                                
               Both parties agree that petitioner’s payments to his ex-wife           
          satisfied the requirements set out in section 71(b)(1)(A), (B),             
          and (C).  Payment was made in cash, made pursuant to a “divorce             
          or separation instrument” as described in section 71(b)(2)(C),              
          and the payment was not ineligible for the section 71 and 215               
          deduction/inclusion scheme.  At the time of payment, petitioner             
          and his ex-wife were not members of the same household.  The                
          disagreement in this case is solely about whether petitioner’s              
          payments satisfied section 71(b)(1)(D); i.e., whether                       
          petitioner’s liability to make payments would have terminated in            
          the event of his ex-wife’s death.  If the payments would have               
          terminated in the event of his ex-wife’s death, the payments                
          would have been “alimony”.  Because it seems clear that                     
          petitioner’s payments would not have terminated in the event of             







Page:  Previous  1  2  3  4  5  6  7  Next 

Last modified: November 10, 2007