Nada Nahhas - Page 6

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          v. Helvering, 290 U.S. 111, 115 (1933).  Petitioner did not                 
          argue that section 7491 is applicable in this case, nor did he              
          establish that the burden of proof should shift to the                      
          respondent.  Moreover, the issues involved in this case (alimony            
          and the alternative minimum tax) are legal issues and should be             
          decided on the record without regard to the burden of proof.                
          Petitioner, however, bears the burden of proving that                       
          respondent’s determination in the notice of deficiency is                   
          erroneous.  See Rule 142(a); Welch v. Helvering, supra at 115.              
               An individual may deduct from his or her gross income the              
          payments he or she made during a taxable year for alimony or                
          separate maintenance.  Sec. 215(a).  Conversely, the recipient of           
          alimony or separate maintenance payments must include those                 
          payments when calculating his or her gross income.  Sec.                    
               Section 71(b)(1) defines “alimony or separate maintenance              
          payment” as any payment in cash if:                                         
                    (A) such payment is received by (or on behalf of)                 
               a spouse under a divorce or separation instrument,                     
                    (B) the divorce or separation instrument does not                 
               designate such payment as a payment which is not                       
               includable in gross income under this section 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                                         

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