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contain a clear, explicit and express direction” that the
payments are not to be treated as alimony. Richardson v.
Commissioner, 125 F.3d 551, 556 (7th Cir. 1997), affg. T.C. Memo.
1995-554.
The Court declines petitioner’s invitation to go beyond the
language of the temporary order. The plain language of section
71(b)(1)(B) provides that when, under the divorce or separation
instrument, the payment by one spouse to the other spouse is not
includable in the gross income of the receiving spouse and is not
allowable as a deduction to the payor spouse, the payments do not
constitute alimony. In this case, the language contained in the
temporary order does not expressly state that the payments are
not includable in petitioner’s gross income and not deductible to
Mr. Nahhas, and section 71(b)(1)(B), therefore, is satisfied.4
Next, the Court considers the requirements of section
71(b)(1)(D), which requires, as a condition to qualify as
alimony, that the obligation to make payments must terminate upon
the death of the former spouse. If the payor is liable for even
one otherwise qualifying payment after the recipient’s death,
none of the related payments required before death will be
alimony. Sec. 1.71-1T(b), Q&A-13, Temporary Income Tax Regs., 49
4 The Court observes that, unlike the temporary order, the
final judgment of dissolution contains express language providing
that the payments would be taxable to petitioner and deductible
by Mr. Nahhas.
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