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SEC. 71(b). Alimony or Separate Maintenance
Payments Defined.--For purposes of this section--
(1) In general.–-The term “alimony or
separate maintenance payment” means any
payment in cash if--
(A) such payment is received by (or
on behalf of) a spouse under a divorce
or separation instrument,
(B) the divorce or separation
instrument does not designate such
payment as a payment which is not
includible in gross income * * * and not
allowable as a deduction under section
215,
(C) in the case of an individual
legally separated from his spouse under
a decree of divorce or of separate
maintenance, the payee spouse and the
payor spouse are not members of the same
household at the time such payment is
made, and
(D) there is no liability to make
any such payment for any period after
the death of the payee spouse and there
is no liability to make any payment (in
cash or property) as a substitute for
such payments after the death of the
payee spouse.
Both parties agree that petitioner’s payments to his ex-wife
satisfied the requirements set out in section 71(b)(1)(B), (C),
and (D).5 The parties do not agree, however, whether the
5 Respondent’s argument focuses on sec. 71(b)(1)(A), so we
merely note--it does not impact our holding--that it seems
inconsistent to concede that the divorce or separation agreement
in question does not designate a payment as being excluded from
the secs. 71 and 215 inclusion/deduction scheme when respondent’s
argument is that there is no divorce or separation agreement at
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Last modified: November 10, 2007