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(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
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Last modified: November 10, 2007