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On line 33(a) of their Federal income tax return,
petitioners claimed a deduction for alimony paid in the amount of
$16,773. In the notice of deficiency, respondent disallowed the
alimony deduction because petitioners did not prove either that
this amount was for alimony or that it was actually paid.
Discussion
The Commissioner’s determinations are presumed correct, and
taxpayers generally bear the burden of proving otherwise. Welch
v. Helvering, 290 U.S. 111, 115 (1933). Petitioners did not
argue that section 7491 is applicable in this case, nor did they
establish that the burden of proof should shift to respondent.
Moreover, the issue involved in this case, alimony, is a legal
one and will be decided on the record without regard to the
burden of proof. Petitioners, however, bear the burden of
proving that respondent’s determination in the notice of
deficiency is erroneous. See Rule 142(a); Welch v. Helvering,
supra at 115.
Taxpayers may deduct from their gross income payments made
during a taxable year for alimony or separate maintenance. Sec.
215(a).
Section 71(b)(1) defines an “alimony or separate maintenance
payment” as any payment in cash if:
(A) such payment is received by (or on behalf of)
a spouse under a divorce or separation instrument,
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Last modified: November 10, 2007