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failure of proof.11 Rule 122(b); Borchers v. Commissioner, 95
T.C. 82, 91 (1990), affd. 943 F.2d 22 (8th Cir. 1991).
In support of his argument that the monthly payments at
issue are deductible or excludable from his income and includible
in Ms. Platt’s income for the taxable year 2002, Mr. Bangs
advances several arguments. We first address Mr. Bangs’ argument
that the monthly payments at issue constitute alimony under
section 71 and are deductible under section 215(a). Ms. Platt
and respondent take the position that those payments are not
alimony under that section.12
In advancing their respective positions on brief as to
whether the monthly payments at issue constitute alimony under
section 71, Mr. Bangs and Ms. Platt rely on section 71 as amended
by the Deficit Reduction Act of 1984 (DEFRA), Pub. L. 98-369,
sec. 422(a), 98 Stat. 795 (amended section 71). Respondent
argues that amended section 71 does not apply to those payments.
We agree with respondent.13
11The parties do not address sec. 7491(a). In any event, we
need not decide whether the burden of proof shifts to respondent
under that section. That is because resolution of the issue
presented here does not depend on who has the burden of proof.
12Respondent in each of these cases is in essence a stake-
holder. On brief, however, respondent agrees with Ms. Platt’s
position.
13DEFRA also amended sec. 215 (amended sec. 215). DEFRA,
Pub. L. 98-369, sec. 422(b), 98 Stat. 797. That amendment
applies with respect to (1) divorce and separation instruments
(continued...)
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