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by the wife’s representative to the taxpayer memorializing the
terms of their oral agreement constituted a written instrument).
But courts have also routinely held that there must be some
actual writing in effect. See, e.g., Herring v. Commissioner, 66
T.C. 308, 311 (1976) (holding that payments made under an oral
agreement were not alimony). The draft settlement agreement was
never in effect, and the fact that petitioner’s ex-wife
acknowledges receiving the payments made by petitioner does not
satisfy the writing requirement. See, e.g., Leventhal v.
Commissioner, supra.
Although we appreciate the difficult position that
petitioner has found himself in, particularly since it seems
clear that the intention of the oral agreement in effect between
petitioner and his ex-wife had been to have the $1,500 monthly
payments serve as “alimony”, deductions are a matter of
legislative grace and must meet all applicable statutory
requirements. INDOPCO, Inc. v. Commissioner, 503 U.S. 79, 84
(1992). To be deductible as alimony under section 71, a payment
must be made pursuant to some kind of written agreement, and the
oral agreement in effect here is insufficient to satisfy that
requirement. See sec. 71(b)(1)(A). Accordingly, we hold that
petitioner’s payments made to his ex-wife in 2002 were not
properly deductible as alimony.
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