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124 T.C. 1 (2005), affd. 435 F.3d 555 (5th Cir. 2006). Section
71 is not a tremendously complicated statute, and its
requirements are clearly set forth. The operative order in
effect for 2002 was a written instrument incident to the divorce
decree that dissolved petitioner’s marriage to his ex-wife.
Because the Superior Court’s Order was a written instrument
incident to a divorce decree, it thus meets the definition of a
divorce or separation instrument under section 71(b)(2)(A).
Despite the fact that petitioner falls within the provisions
of the applicable statute, respondent argues that because
petitioner did not have a legally enforceable duty to make
spousal support payments in 2002, petitioner’s payments to his
ex-wife in 2002 were not made pursuant to a divorce or separation
instrument.4 But, as petitioner rightly argues, there is no
requirement in the statute that payments be made under a legally
enforceable duty in order to qualify for the alimony deduction;
the only requirement is that any payment be “received by (or on
behalf of) a spouse under a divorce or separation instrument”.
Sec. 71(b)(1)(A). Although it was once the case that entitlement
to an alimony deduction under section 71 required payments to be
4 Respondent does not allege that the payments at issue
were disguised child support payments or installments of a
property distribution; rather, his sole argument is that
petitioner’s payments to his ex-wife did not constitute alimony
because they did not meet its definition under the statute.
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Last modified: November 10, 2007