Randall L. Sindelir - Page 6




                                        - 5 -                                         
                              (D) there is no liability to make                       
                         any such payment for any period after                        
                         the death of the payee spouse and there                      
                         is no liability to make any payment (in                      
                         cash or property) as a substitute for                        
                         such payments after the death of the                         
                         payee spouse.                                                
               The issue here is solely whether petitioner’s payments to              
          his ex-wife in 2002 satisfied the requirement that the payments             
          be made under a divorce or separation instrument.  See sec.                 
          71(b)(1)(A).                                                                
               Section 71(b)(2) provides that a “divorce or separation                
          instrument” means:                                                          
                         (A) a decree of divorce or separate                          
                    maintenance or a written instrument incident                      
                    to such a decree,                                                 
                         (B) a written separation agreement, or                       
                         (C) a decree (not described in                               
                    subparagraph (A)) requiring a spouse to make                      
                    payments for the support or maintenance of                        
                    the other spouse.                                                 
          Although petitioner and his ex-wife had an oral agreement, no               
          written agreement or decree was in effect for the taxable year at           
          issue.                                                                      
               Courts have leniently interpreted the writing requirement.             
          See, e.g., Leventhal v. Commissioner, T.C. Memo. 2000-92 (finding           
          that letters signed by both the taxpayer’s attorney and the ex-             
          wife’s attorney clearly setting forth the terms of maintenance              
          payments was a “separation agreement”); Osterbauer v.                       
          Commissioner, T.C. Memo. 1982-266 (determining that a letter sent           






Page:  Previous  1  2  3  4  5  6  7  8  Next 

Last modified: November 10, 2007