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made before the issuance of the divorce decree); Taylor v.
Commissioner, 55 T.C. 1134, 1140 (1971) (applying the old version
of section 71 and concluding that, “absent some sort of currently
enforceable judicial decree or order”, section 71 would not
apply); Leventhal v. Commissioner, T.C. Memo. 2000-92 (stating
that letters from one spouse’s attorney to another do not
constitute a divorce or separation instrument); Peterson v.
Commissioner, T.C. Memo. 1998-27 (confirming that a California
State court’s issuance of a Minute Order was sufficient under
State law to constitute a “divorce or separation instrument”);
Abood v. Commissioner, T.C. Memo. 1990-453 (applying the pre-
amendment version of section 71 to the facts and clarifying that,
under those circumstances, “voluntary payments are not within the
purview of sections 71 and 215”). This is true even of recent
cases. See, e.g., Johnson v. Commissioner, 441 F.3d 845, 850
(9th Cir. 2006) (affirming the Tax Court’s holding that the prior
version of section 71 applied). There have been no cases firmly
on point with the one at bar.
Respondent’s own regulations support petitioner’s position.
Although section 1.71-1, Income Tax Regs., contains the
antiquated language reflective of the older version of the
alimony statute, see sec. 1.71-1(b), Income Tax Regs. (“Such
periodic payments must be made in discharge of a legal obligation
imposed upon or incurred by the husband because of the marital or
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