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decree (not described in subparagraph (A)) requiring a spouse to
make payments for the support or maintenance of the other spouse.
Sec. 71(b)(2). No decree (or order) by the Circuit Court of
Fairfax County was in effect when petitioner made his payments to
Ms. Deluca in 2002. Thus, we must decide whether there was a
written separation agreement in effect before January 24, 2003,
when the pendente lite order fixing spousal support was entered
by that court.
The term “written separation agreement” is not defined in
the Internal Revenue Code, the applicable regulations, or in the
legislative history. Bogard v. Commissioner, 59 T.C. 97, 100
(1972). A written separation agreement is a clear, written
statement of the terms of support for separated parties. In
Bogard v. Commissioner, supra at 101, we stated:
Logically, it appears Congress was interested in a
clear statement in written form of the terms of support
where the parties are separated. In this manner it is
administratively convenient for the Commissioner to
apprise himself of the amount of gross income to the
wife and the corresponding deduction allowable to the
husband. * * *
See also Leventhal v. Commissioner, T.C. Memo. 2000-92; Ewell v.
Commissioner, T.C. Memo. 1996-253.
Letters which do not show a meeting of the minds between the
parties cannot collectively constitute a written separation
agreement. Grant v. Commissioner, 84 T.C. 809, 822-823 (1985),
affd. without published opinion 800 F.2d 260 (4th Cir. 1986).
However, we have recognized that where one spouse assents in
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