Randall L. Sindelir - Page 7




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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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