Denis M. Katchmeric - Page 9




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          writing to a letter proposal of support by the other spouse, a              
          valid written separation agreement has been held to exist.  See             
          Azenaro v. Commissioner, T.C. Memo. 1989-224.                               
               Petitioner contends that he is entitled to an alimony                  
          deduction of $15,600 for the payments he made to Ms. Deluca in              
          2002 because the December 7, 2001, letter he received from her              
          attorney contained an offer, among other items, for separation              
          support payments of $1,300 per month, which he accepted when he             
          made payment by checks, marked “support”, payable to Ms. Deluca,            
          and cashed by her in 2002.  Although petitioner never answered              
          either by letter or orally the proposal for spousal support                 
          mentioned in the letter from Ms. Deluca’s attorney, he argues               
          that he performed pursuant to an executory contract which                   
          satisfied the “written separation agreement” requirement of                 
          section 71(b)(2)(B).  To the contrary, respondent contends that             
          the facts and circumstances in this case do not establish that              
          petitioner’s payments to Ms. Deluca in 2002 were made pursuant to           
          a written separation agreement entered into by them.                        
               We agree with respondent for the following reasons.  First,            
          the most that can be said about the attorney’s letter to                    
          petitioner is that it is only evidence of a prospective course of           
          action.  It contained proposals of several terms that might have            
          been included in a future separation and property settlement                
          agreement favorable to Ms. Deluca.  It was simply the beginning             
          of a negotiation process by them with respect to spousal support            





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