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made under a legally enforceable obligation, it has not been so
for more than 20 years.
Prior to the Deficit Reduction Act of 1984, Pub. L. 98-369,
sec. 422(a), 98 Stat. 795, section 71(a)(1) of the Internal
Revenue Code of 1954 defined alimony as payments made “in
discharge of * * * a legal obligation which, because of the
marital or family relationship, is imposed on or incurred by the
husband under the [divorce] decree or under a written instrument
incident to * * * divorce or separation.” The statute was
amended in 1984, repealing the “requirement that the payment be
based on a legal support obligation.” H. Rept. 98-432 (Part 2)
at 1069 (1984).
The cases cited by respondent in support of his position are
cases decided under the old law, or are the progeny of older
cases containing no independent analysis reflective of the
changes to the statute. Although there certainly have been cases
holding that voluntary payments made outside a written instrument
incident to divorce are not alimony, those cases have generally
dealt with situations where there was no proper divorce decree or
separation agreement, where a payment was made before the
operative document went into effect, or where the older version
of section 71 applied to the particular case. See, e.g., Herring
v. Commissioner, 66 T.C. 308, 311 (1976) (holding that payments
made under an oral agreement were not alimony because they were
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Last modified: November 10, 2007