Neil Jerome Proctor - Page 7

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          payment as part of the division of marital property does not,               
          however, preclude the payment from being alimony.  See Benedict             
          v. Commissioner, 82 T.C. 573, 577 (1984) (stating that “labels              
          attached to payments mandated by a decree of divorce or marriage            
          settlement agreement are not controlling”).  While the                      
          designation need not mimic the statutory language of sections 71            
          and 215, the requirements of subparagraph (B) will generally be             
          met if there is no “clear, explicit and express direction” in the           
          divorce decree stating that the payment is not to be treated as             
          alimony.  See Estate of Goldman v. Commissioner, 112 T.C. 317,              
          323 (1999), affd. without published opinion sub nom. Schutter v.            
          Commissioner, 242 F.3d 390 (10th Cir. 2000).  The divorce decree            
          does not contain such language.  Accordingly, the retirement                
          payments meet the requirements of section 71(b)(1)(B).                      
               Section 71(b)(1)(D) provides that there must be no liability           
          for the payor to make such payments, or for the payor to make               
          substitute payments, after the death of the payee spouse.                   
          Respondent contends that the retirement payments fail to meet the           
          requirements of section 71(b)(1)(D) because the divorce decree              
          does not state whether such payments will terminate upon the                
          death of Ms. Holdman.  In 1986, Congress amended section                    
          71(b)(1)(D), specifically to remove the requirement that a                  
          divorce instrument expressly state that the liability terminates            

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