§215 — Repealed. Pub. L. 115–97, title I, § 11051(a), Dec. 22, 2017, 131 Stat. 2089]

485, 492–93 (2017), supplementing and overruling in part 147 T.C.

Discussion Section 215(a) generally permits an individual to deduct from gross income “alimony or separate maintenance payments,” as defined in section 71(b).4 This deduction is allowable, however, only if the alimony or separate maintenance payments are includible in the recipient’s gross income under section 71. § 215(b). As a general rule, alimony or separate maintenance payments are includible in the payee spouse’s gross income. § 71(a). This general rule is inapplicable, however, and conseq

7491(a) does not apply here because petitioner has not produced any evidence that he has satisfied the preconditions for its application.

We need not decide whetherthe burden ofproof shifts to the IRS because the relevant facts are stipulated and only a legal issue remains.

Furthermore, because the relevant facts are stipulated and only a legal issue remains, we need not decide whether the burden ofproofshifts to respondent.

Petitioner has not alleged that section 7491(a) applies, and the Court need not decide whether the burden should be shifted because the Court decides this case on the record, not on who has the burden of proof.

As we ultimately hold that the entire $18,000 is not deductible as alimony, we need not decide whether petitioner properly substantiated the additional amounts paid .

ration instrument does not designate such payment as a payment which is not includible in gross income under this section 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, 5 We need not decide whether sec.

tion instrument does not designate such payment as a payment which is not includible in gross income under this section 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 , s We need not decide whether sec .

tion instrument does not designate such payment as a payment which is not includible in gross income under this section 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 , s We need not decide whether sec .

Accordingly, we need not decide whether the general rule of sec.

Accordingly, we need not decide whether the general rule of sec.

9 We need not decide whether sec.

More specifically, section 215 requires that an alimony recipient’s tax consequences under section 71 be taken into account when determining the payor’s eligibility for the alimony deduction.

Gramlich-Quintal during the years in issue constitute alimony as defined in section 71(b) that he is entitled to deduct pursuant to section 215.

* * * Therefore, we hold that petitioner is not entitled to his claimed alimony deduction under section 215 for 2006.

We hold that he is not.

We hold that they do not.

We hold that they do not.

We hold that they do not.

Although the language does not precisely mimic the language of section 71(b)(1)(B), we hold that the substance ofa nonalimony designation is reflected in the Temporary Orders.

Accordingly, we hold that the military retired pay of$15,384 and $15,738 that petitioner received for tax years 2007 and 2008, respectively, is gross income.

215 provides that a taxpayer who makes "alimony or separate maintenance payments", as defined in sec.

Deductible Alimony Payments for Federal Income Tax Purposes Pursuant to section 215(a), there shall be allowed as a deduction an amount equal to the alimony payments paid during an individual's taxable year.

ccordingly, we hold that petitioner is not entitled to deduct as alimony the $50,000 payment made in 2007.

However, amounts received as alimony or separate maintenance payments are taxable to the recipient (pursuant to sections 61(a)(8) and 71(a)) and deductible by the payor (pursuant to section 215(a)) in the year paid .

Section 215 provides in relevant part: - 6 - SEC .

We hold that the lump-sum payments are not deductible as alimony and that petitioner is not liable for the accuracy-related penalty .

Accordingly, we hold that, under the unique facts of this case, petitioner's payments made to his former wife in-2007 satisfied the conditions set forth in section 71 and were thus properly deductible as alimony under section 215 for that taxable year.

We hold that they are not .

- 11 as alimony or(cid:127)separate maintenance payments are taxable to the recipient (pursuant to sections 61(a)(8) and 71(a)) and deductible by the payor (pursuant to section 215(a)) in the year paid.

Section 215 provides in relevant part : SEC .

The issues for decision are SERVED Dec 30 2008 - 2 - whether petitioner is entitled to a deduction for alimony paid during 2004 pursuant to section 2151 and if so, the amount .

The parties have asked us to decide whether petitioner properly deducted $24,000 that was voluntarily paid to his ex-wife in 2002 as alimony .2 We hold that the payments at issue were properly deductible as alimony under section 215(a) and consequently hold for petitioner .

The retirement payments meet the requirements of section 71(b)(1), and pursuant to section 215, petitioner is entitled to a deduction of $3,387 for alimony payments .

Thus, we hold that the $12,000 paid to Von Bergen in 2004 pursuant to the settlement agreement between petitioner and Von Bergen does not qualify to be deducted as alimony paid by - 7 - petitioner under section 215 .

Thus, we hold that the $9,600 paid to Mr .

Consequently, they are not deductible to petitioner pursuant to section 215(a).

We hold that it is not.

On the other hand, amounts received as alimony or separate maintenance payments are taxable to the recipient (pursuant to sections 61(a)(8) and 71(a)) and deductible by the payor (pursuant to section 215(a)) in the year paid.

When enacting this definition in 1984, Congress intended “to establish an objective standard to distinguish be- tween a payment received in the division of property . . . and a payment received as spousal support.” Estate of Goldman, 112 T.C. at 322 (citing legislative history). Petitioner contends that his $300,000 payments to Ms. Roberts in 2017 and 2018 constituted deductible alimony. Respondent contends that the payments were components of a marital property settlement (or otherwise failed t

317, 322 (1999) ("'The committee bill attempts to define alimony in a way that would conform to general notions ofwhat type ofpayments constitute alimony as distinguished from property settlements and to prevent the deduction oflarge, one-time lump-sum property settlements.'" (quoting H. Rept. 98-432 (Part 2), at 1495 (1984), 1984 U.S.C.C.A.N. 697, 1137)) (citing Hoover v. Commissioner, 102 F.3d 842, 845 (6th Cir. 1996), af_f'f'g T.C. Memo. 1995-183), aff'd without published opinion sub nom. Sch

Bangs' concession, we hold that t e monthly payments at issue do not constitute alimony under sectio 71 before its amendment by DEFRA and are not deductible under section 215 (a) before its amendment by DEFRA.15 We turn now to Mr .

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 under this section 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)

- 11 - Petitioner seems to suggest that these cases stand for the proposition that section 215, which allows a deduction for alimony or separate maintenance payments, provides the exclusive means for deducting a payment from one spouse to another, if the payment is made pursuant to a divorce.

Ambrose under section 215, or whether they were child support and excludable from Evelyn R.

Ambrose under section 215, or whether they were child support and excludable from Evelyn R.

Practice and Procedure. SERVED Apr 06 2020 - 2 - [*2] penalty of$1,687.40. After concessions,2 the issue for decision is whether petitioner's payments to his former spouse, in accordance with a divorce decree, were deductible alimony payments under section 215. FINDINGS OF FACT Some ofthe facts have been stipulated and are so found. We incorporate the first stipulation offacts and accompanying exhibits by this reference. Petitioner resided in El Paso, Texas, when he timely filed his petition. Pe

r on behalfof) 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 under this section and not allowable as a deduction under section 215, (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) th

Alimony Paid Deduction Year Claimed amount Allowed amount 2011 $70,580 $24,000 2012 66,710 24,000 Section 215(a) allows as a deduction an amount equal to alimony paid.

or on behalfof) a spouse under a divorce or separation instrument, (B) the divorce or separation instrument does not designate such payment as a paymentwhich is not includable in gross income under this section and not allowable as a deduction under section 215, (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) th

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 under this section 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)

use under a divorce or separation instrument, sec. 71(b) (1) generally requires that: (1) The divorce or separation instrument not designate a payment as one that is not includable in gross income under sec. 71 and not allowable as a deduction under sec. 215; (2) the payee spouse and the payor spouse not be members of the same household at the time the payments are made; and (3) there be no liability to make payments for any period after the death of the payee spouse. Respondent does not dispute

ild in college. See sec. 1.71-1T(c), Q&A-16, Temporary Income Tax Regs., supra. The existence of the contingency triggers application of section 71(c) (1) and makes petitioner' s 2007 payments to his former spouse child support not deductible under section 215 . See, e . g . , Hammond v. Commissioner, T.C. Memo. 1998-53; Fosberg v. Commissioner, T.C. Memo. 1992-713. We conclude that petitioner may not deduct as alimony any portion of the $12, 000 that he paid to Ms. Vogt- Knoedler in 2007. We ha

For section 215 purposes, the definition of "alimony" is actually found in section 71(b) (1), which provides: (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 do

On each of his 2005 and 2006 Federal inàome tax returns, petitioner claimed a $6, 000 deduction under section 215 for - 3 - alimony.

On his 2003 Federal income tax return, petitioner claimed a $6,000 deduction under section 215 for alimony paid to Barbara .

Bangs' concession, we hold that he monthly payments at issue do not constitute alimony under section 71 before its amendment by DEFRA and are not deductible under section 215(a) before its amendment by DEFRA.15 We turn now to Mr .

Therefore, petitioner is not entitled to a $10,080 alimony deduction under section 215 for 2004 .

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 under this section 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

After a concession by respondent, the issue for decision is whether petitioner is entitled to deduct, as alimony under section 215 , $200,000 in payments made to her former spouse .

, meet the requirements of section 71(b)(1)(B) and (D). Section 71(b)(1)(B) requires that the divorce instrument “not designate such payment as a payment which is not includible in gross income under this section and not allowed as a deduction under section 215”. Respondent contends that this prong is not met because the divorce decree refers to the payments as part of a division of the marital property. The classification of a payment as part of the division of marital property does not, howeve

Diego County Superior Court subsequently (in 2001) credited to his arrearage. P contends that all of those payments ($54,110) constitute alimony as defined in sec. 71(b), I.R.C., and that he is therefore entitled to deduct those payments pursuant to sec. 215, I.R.C. R contends that none of the payments at issue qualifies as deductible alimony. - 2 - The primary dispute between the parties is whether P’s family support payments satisfy sec. 71(b)(1)(D), which provides that a cash payment meeting

Section 215, which allows a deduction for alimony paid, defines “alimony” as a payment that meets the four tests spelled out in section 71(b). One of these is section 71(b)(1)(D), which requires that “there [be] no liability to make any such payment for any period after the death of the payee spouse.”3 Sec. 71(b)(1)(D). Limiting deductibility to ob

In general, a payment constitutes alimony within the meaning of section 215 if the payment is made in cash and meets the following four criteria: (1) Such payment is received by (or on behalf of) a spouse under a divorce or separation instrument, (2) the divorce or separation instrument does not designate such payment as a payment which is not includable in gross income under this section and not allowable as a

The sole issue for decision is whether petitioner is entitled to deduct under section 215 as alimony a payment that he made to his former wife pursuant to the judgment of a State court entered on a jury’s verdict in their divorce proceedings awarding - 2 - her “lump sum alimony”.

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 under this section 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

First, payments made before the existence of a written divorce or separation instrument are not deductible by the payor spouse under section 215 or its predecessor.

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 under this section 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)

includable in the gross income of W as alimony received, and not deductible by H as alimony paid. H filed a petition for redetermination. This Court held that the payments were alimony for Federal income tax purposes and were deductible by H, under sec. 215, I.R.C. H seeks recovery of litigation costs pursuant to sec. 7430, I.R.C., in the amount of $54,012.63. *This opinion supplements our previously filed opinion in Kean v. Commissioner, T.C. Memo. 2003-163. - 2 - Held: R’s position that the p

e criteria of sec. 71(b)(1), I.R.C. Specifically, the payments were received by W and, pursuant to State law, would have terminated at W’s death. Consequently, the payments are alimony for Federal income tax purposes, and are deductible by H, under sec. 215, I.R.C., and includable in the gross income of W, under secs. 61(a)(8) and 71(a), I.R.C. - 2 - Alan R. Adler, for petitioner in docket No. 8966-00. Jeffrey M. Garrod and Eugenia Yudanin, for petitioner in docket No. 9144-00. Joseph J. Boylan,

In pertinent part, section 215 provides: SEC.

e of deficiency. Discussion Pursuant to sections 71(a) and 215(a), alimony is taxable to the recipient and is deductible by the payer. Child support payments, on the other hand, are neither includable in income under section 71 nor deductible under section 215. See sec. 71(c). Alimony is 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

erences are to the Tax Court Rules of Practice and Procedure. After concessions, the issues are whether: (1) Certain payments to Ms. Hazam from Mr. Hazam are properly included, pursuant to section 71, in Ms. Hazam’s income, and deducted, pursuant to section 215, by Mr. Hazam as alimony; and (2) Ms. Hazam is liable, pursuant to section 6651(a)(1), for additions to tax for failure to file timely returns. FINDINGS OF FACT When the petitions were filed, Mr. Hazam resided in Mechanicsburg, and Ms. Ha

Section 215 states that "there shall be allowed as a deduction an amount equal to the alimony or separate maintenance payments [defined in section 71(b)] paid during such individual's taxable year." Whether petitioner's payments qualify for deduction therefore hinges on their meeting the definition of "alimony" contained in section 71(b)(1). Sectio

Deductions Section 215 provides that an individual shall be allowed a deduction in an amount equal to the alimony or separate maintenance payments paid during the taxable year.

ur analysis with the third requirement under which a payment is not treated as alimony if the divorce or separation instrument designates that the payment is not includable in the recipient’s income under section 71 or deductible by the payor under section 215. See sec. 71(b)(1)(B). The instrument must contain a clear and explicit designation to that effect although it need not refer expressly to section 71 or section 215. See Estate of Goldman v. Commissioner, 112 T.C. 317, 323-324 (1999); see

The sole issue is whether amounts petitioner paid to or on behalf of his ex-wife in 1994 and 1995 are deductible as alimony under section 215.2 The facts may be summarized as follows.

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 under this section 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

. Petitioner obtained an opinion of a law firm which she relied upon in taking these positions on her returns. On his 1991 and 1994 returns, Mr. Rangos deducted as alimony the amounts he paid for Vehicles Nos. 1 and 2 during those years pursuant to section 215. Notices of Deficiency In the notices of deficiency, respondent determined that petitioner failed to report alimony income of $32,733 and $21,601 for 1991 and 1994, respectively. Respondent has conceded the - 10 - section 6651(a) addition

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 under this section 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

The axis along which that statement runs connects, at one end, - 5 - section 215 and, at the other, section 71.

$4,671 and $5,376, respectively. The issue for decision is whether certain payments made by Thomas H. Nelson to his former spouse during the years in issue constitute alimony within the meaning of section 71 and are therefore deductible pursuant to section 215. FINDINGS OF FACT This case was submitted fully stipulated, and the stipulated facts are so found. Petitioners are husband and wife. They filed timely joint Federal income tax returns for the years 1992 and 1993. At the time the petition

alf of) a spouse under a divorce or separation instrument, - 8 - (B) the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section 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)

ow Cause was filed on May 6, 1992, in State court, P made certain payments to, or on behalf of, his wife in the nature of support. P deducted these payments, together with payments made after May 6, 1992, from his gross income as alimony pursuant to sec. 215, I.R.C., on his Federal income tax return for 1992. R limited P's alimony deduction to those payments made after May 6, 1992. On the facts, Held: No alimony deduction is allowed under sec. 215, I.R.C., for payments made by petitioner to his

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 under this section 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 sepa- rate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and

s in subparagraphs (A), (B), or (C). The order issued by the circuit court is a decree ordering petitioner to make support payments to his wife. Sec. 71(b)(2)(C). However, payments made prior to the entry of a support decree are not deductible under section 215. Healey v. Commissioner, 54 T.C. 1702 (1970), affd. without published opinion, 71-2 USTC par. 9536, 28 AFTR 2d 71-5217 (4th Cir. 1971); Jachym v. Commissioner, T.C. Memo. 1984-181; see also White v. Commissioner, T.C. Memo. 1984-65. There

In general, section 71 mandates the inclusion of alimony in the recipient's gross income, and section 215 allows the payor to deduct the same from gross income.

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 under this section 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 (c

n 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 under this section 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)

on behalf of) a spouse under a divorce or separation instru- ment; (2) the divorce or separation instrument does not designate the payment as a payment that is not includible in gross income under this section and not allowable as a deduction under section 215; (3) 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 the payment is made; and (4)

if (1) the payment is received by a spouse under a divorce or separation instrument, (2) the divorce or separation instrument does not state the payment is not includible as gross income under section 71 and is not allowed as a deduction -7- under section 215, (3) the spouses are not living in the same household at the time ofthe payment, and (4) there is no liability to make the payments for any period after the death ofthe payee spouse and there is no liability to make any payment (in cash or

215 (as in effect before 2018) (permitting a deduction for alimony or separate mainten- ance payments). On May 24, 2012, SRM sold its interest in DCA for $93,770,600. Gains from that sale passed through to Steven as SRM's sole shareholder. In June 2012, as required by the agreement, Steven satisfied the $5,462,312 remaining balance ofthe promi

h if(1) such payment is received by a spouse under the divorce decree, (2) the divorce or separation agreement does not designate such payment as a payment which is not includible in gross income under section 71 and not allowed as a deduction under section 215, (3) the spouses are not living in the same household at the time ofthe payment, and (4) there is no liability to make the payments for any period after the death ofthe payee spouse and there is no liability to make any payment (in cash o

Whether Petitioner Failed To Report $27,245 ofTaxable Alimony Income Section 61(a)(8) provides that gross income includes amounts received by a payee spouse as alimony or separate maintenance under section 71(b).

t is received by 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 includable in gross income under section 71 and not allowable as a deduction under section 215, (C) the payor and payee spouses are not members ofthe same household when the payment is made, and (D) the payment obligation terminates at the death ofthe payee spouse and there is no liability to make either a cash or a property paymen

Deductible Alimony Payments for Tax Purposes Section 215(a) and (b) allows a deduction for the payment ofalimony as defined in section 71(b), which provides: (1) In general.--The term "alimony or separate maintenance payment" means any payment in cash if-- (A) such payment is received by (or on behalfof) a spouse under a divorce or separation instrument, (B) the divorce or separation instrument does not designate such paym

r on behalfof) 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 under this section and not allowable as a deduction under section 215, - 5 - (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and

r on behalfof) 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 under this section and not allowable as a deduction under section 215; (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made; and - 7 -

U.S. 79, 84 (1992); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934). II. Alimony Paid Deduction Amounts paid as alimony are included in the gross income ofthe payee spouse under section 71(a) and are deductible to the payor spouse under section 215. Alimony is defined in section 71(b)(1) as any payment in cash that meets four requirements. The parties agree that the first three elements ofthe section 71(b)(1) definition ofalimony payments have been met. They contest only whether the

or on behalfof) a spouse under a divorce or separation instrument; (2) the divorce or separation instrument does not designate the payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215; (3) the payor and payee spouses are not members ofthe same household at the time the payments are made; and (4) there is no requirement to make payments or substitutes therefor after the payee spouse's death.

es under a divorce or separation instrument, (2) the divorce or separation instrument does not designate the payment as not includable in gross income (ofthe payee spouse) under section 71 and not allowable as a deduction (to the payor spouse) under section 215, (3) the payee spouse and the payor spouse are not members of the same household at the time the payment is made, and (4) the payor spouse is not liable for any payments for any period after the death ofthe payee spouse.

on behalfof) 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 under this section and not allowable as a deduction under section 215, (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) the

on behalfof) 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 under this section and not allowable as a deduction under section 215, (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) the

es under a divorce or separation instrument, (2) the divorce or separation instrument does not designate the payment as not includable in gross income (ofthe payee spouse) under section 71 and not allowable as a deduction (to the payor spouse) under section 215, (3) the payee spouse and the payor spouse are not members of the same household at the time the payment is made, and (4) the payor spouse is not liable for any payments for any period after the death ofthe payee spouse.

The taxpayerhas the burden ofproving - 5 - [*5] entitlement to the deduction claimed. Rule 142(a); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934); Rockwell v. Commissioner, 512 F.2d 882, 886 (9th Cir. 1975), a_ff'g T.C. Memo. 1972-133. Section 71(b)(1) defines alimony as a payment in cash if: (1) the payment is received by a

or on behalfof) 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 under his section and not allowable as a deduction under section 215, (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) th

on behalfof) 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 under this section and not allowable as a deduction under section 215, (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) ther

The taxpayerhas the burden ofproving - 5 - [*5] entitlement to the deduction claimed. Rule 142(a); New Colonial Ice Co. v. Helvering, 292 U.S. 435, 440 (1934); Rockwell v. Commissioner, 512 F.2d 882, 886 (9th Cir. 1975), a_ff'g T.C. Memo. 1972-133. Section 71(b)(1) defines alimony as a payment in cash if: (1) the payment is received by a

This Court focuses on the divorce instrument in determining whether payments meet the criteria of"alimony" as defined by section 71(b). See Rosenthal v. Commissioner, T.C. Memo. 1995-603, 70 T.C.M. (CCH) 1614, 1615 (1995). - 4 - Section 71(c) provides: SEC. 71(c). Payments To Support Children.-- (1) In general.--Subsection(a) shall not a

halfof) a spouse under a divorce or separation agreement; (2) the divorce or separation agreement does not designate the payment as a - 6 - [*6] payment which.is not includible in gross income under section 71 and not allowable as a deduction under section 215; (3) in the case ofan individual who is legally separated from his spouse under a decree ofdivorce or separate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time the payment is made; and (4)

the taxpayer's total paymentwas less than the total child support he owed for the year, including arrearages and the reimbursement obligation, all ofthe payments should have been allocated to child support and could not be deducted as alimony under section 215. Respondent allowed petitionerto deduct $15,000 ofalimonypayments. Respondent correctly disallowed $39,000 ofpetitioner's alimony deduction because that amount was for petitioner's child support obligations. Petitioner acknowledgedthat he

For purposes ofsection 215, "'alimony or separate maintenance payment' means any alimony or separate maintenance payment (as defined in section 71(b)) which is includable in the gross income ofthe recipient under section 71." Sec.

the payment must be received by a spouse under a divorce or separation instrument. Sec. 71(b)(1)(A). Second, the divorce or separation instrument must not designate the payment as not includible in gross income or not allowable as a deduction under sec. 215. Sec. 71(b)(1)(B). Third, the payee and the payor must not be members ofthe same household when the payment is made. Sec. 71(b)(1)(C). Respondent concedes that these requirements have been met. 5An appeal in this case would lie to the Court

r on behalfof) a spouse under a divorce or separation instrument, (B) the divorce or separation instrument does not designate such payment as a paymentwhich is not includible in gross income under this section and not allowable as a deduction under section 215, (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) the

Johnson under section 215 and includible in his ex-wife's gross income under section 71.

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 under this section and not allowable as a deduction under section 215, (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) th

Section 215(a) allows an individual to deduct "an amount equal to the alimony or separate maintenance payments paid during such individual's taxable year." Section 215(b) defines the term "alimony or separate maintenance payment" for purposes ofsection 215 to mean "any alimony or separate maintenance payment (as defined in section 71(b)) which is includible in the gross income ofthe recipient under section 71." Section 71(b)(1) provides the following definition ofthe term "alimony or separate ma

ate ofBongard v. Commissioner, 124 T.C. 95, 111 (2005). -5- [*5] (B) the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215,. (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are.not members ofthe same . household at the time such payment is made, and (D)

LEXIS 332, at *15. Thus, for 2008, section 71(b)(1)(A) is satisfied. C. The Divorce or Separation Instrument Does Not Designate Such Payment as a Payment Which Is Not Includible in Gross Income Under Section 71 and Not Allowable as a Deduction Under Section 215. Under section 71(b)(1)(B), the divorce or separation instrument must clearly and explicitly state that the payments are not to be treated as income ifthey are to be tax free. See Richardson v. Commissioner, 125 F.3d 551, 556 (7th Cir. 19

r on behalfof) 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 under this section and not allowable as a deduction under section 215, (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) th

ceived by (or on behalfof) 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 ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) the

Alimony Deduction Under Section 215 "there shall be allowed as a deduction an amount equal to the alimony or separate maintenance payments paid during such individual's taxable year." Section 71(b)(1) defines the term "alimony or separate maintenance - 5 - payment".

r on behalfof) 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 under this section and not allowable as a deduction under section 215, (C) in the case ofan individual legally separated from his spouse under a decree ofdivorce or ofseparate maintenance, the payee spouse and the payor spouse are not members ofthe same household at the time such payment is made, and (D) th

2 - this Court's Memorandum Findings of Fact and Opinion in Moore v. Commissioner, T.C. Memo. 2011-200 (Moore I). In Moore I we held that petitioner was not entitled to deduct payments that he made to his former spouse during 2006 as alimony under section 215 (a) . Background We adopt the findings of fact in our prior Memorandum Findings of Fact and Opinion, Moore I. For convenience and clarity, we repeat below the facts necessary for the disposition of this motion. In 2006 petitioner made paym

The issue for decision is whether petitioner is entitled to deduct as alimony under section 215 court-ordered payments of attorney's fees and costs to his former wife.

ived 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)

of sect i.on 71 (b) (1) (B) andt thus petitioner is not entitled sto,as deduct i.on pursuant tb section 215.3 Respondent further determined that petitioner is liable, for a section.

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 includable in gross income under this section 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 (

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 under this section 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 i not members of the same household at the time such payment is made, and

Section 215 (a) provides the complementary general rule .that 'the payor spouse may deduct alimony payments in "an amount equal, to the alimony or separate maintenance payments paid during such . individual's taxable-year ." J Respondent-hasallowedandconceded :that petitioner is entitled to deduct alimony payments',for 2003 and 2004 of $19,365 and

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 under this section 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 (

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

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 peri

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 under this section 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 -7

Section 215 permits taxpayers to deduct alimony or separate maintenance payments includable in the gross income of the recipient under section 71 . Section 71(b)(1) defines alimony or separate maintenance payment as a payment in cash if : ( 1) The payment is received by a spouse under a divorce .or separation instrument ; (2) the divorce or separat

Former section 215(a), generally, provided that in the case of a husband described in section 7.1, there shall be allowed as a deduction amounts includable under section 71 in the gross income of his wife, payment of which is made within his taxable .. year . Similarly, former section 71(a)(1), in part, provided that if a wife is divorced or legally separ

n 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 under this section 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 sepa- rate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and

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 includable in gross income under this section 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

-Section 71(b)(1) provides that a payment is "alimony or separate maintenance" if: (A) such payment is received by (or on behal f 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 under this section

r 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 includable in gross income under section 71 and not allowable as a deduction under section 215 ; (c) the payee spouse and the payor spouse are not members of the same household at the time the payment is made ; and (d) there is no liability to make any such payment, or a substitute for such payments, in cash or property, after the

Section 215(b) provides that the term "alimony" means any alimony (as defined in section 71(b)) that is includable in the recipient's gross income under section 71 ..

' OPINION Section 215(a)3 provides that an individual is allowed a deduction for alimony or separate maintenance payments paid during the taxable year .

Discussion Alimony Deduction Section 215(a) allows a deduction for he payment of alimony as defined in section 71(b), which provides : (1) In general .--The term "alimony or separate maintenance payment" means any payment in cash if-- payment is received by (or on behalf of) a spouse under a divorce or separation instrument , (B) .the .divorce or separatio instrument does not designate such payment

(or on behalf of) a spouse un er a divorce or separation instrument , (B) th divorce or separation instrument does not designates ch payment as a payment which is not includable n gross income under this section and not allowable a a deduction under section 215 , (C) in the case of an individual legally separated from his sp use under a decree of divorce or of separate mantenance , the payee spouse and the payor spouse are of members of the same household at the time such p yment is made, and -

Alimony Deduction Section 215 ( a) allows a deduction for alimony paid during the taxable year .

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 includable in gross income under this section 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 -

ived 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 no t 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

The only issue remaining for decision is whether petitioner may deduct as alimony under section 215(a) certain payments he made to his wife in 2002 .

eived 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 includable 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

AN - 8 2007 - 2 - Respondent determined a deficiency of $2,713 in petitioner's Federal income tax for 2002 . The sole issue for decision is whether payments of $9,200 by petitioner to his former wife during 2002 constituted alimony deductible under section 215(a ) . That issue is resolved by whether the $9,200 payments satisfy the definition of "alimony or separate maintenance payment" under section 71 (b)(1)(D) . Some of the facts were stipulated . Those facts, with the annexed exhibits , are s

- 4 - includable 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

alf of) a spouse under a divorce or separation instrument, - 5 - (B) the divorce or separation instrument does not designate such payment as a payment which is not includable in gross income under this section 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

Section 71(a) provides that gross income includes amounts received as alimony or separate maintenance payments .

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 includable in gross income under this section 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 -

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 includable in gross income under this section 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

- 16 - of the distribution under section 215(a), and Ms .

- 16 - of the distribution under section 215(a), and Ms .

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 includable in gross income under this section 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

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 under this section 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 (

eived 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 includable 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

Alimony or separate maintenance payments are taxable to the recipient ( section 71 ( a)) and deductible by the payor ( section 215(a )), so the proper characterization of the payments is very significant .

instrument does not designate such payment as a payment which is not includible in gross income under this section 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 12 - 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 pay

Under section 215, a deduction is allowed for an amount equal to alimony or separate maintenance payments paid during the taxable year. “Alimony or separate maintenance payment” means any alimony or separate maintenance payment that is includable in the gross income of the recipient under section 71. Sec. 215(b). Section 71(b)(1) defines “alimony or sepa

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 under this section 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 - 4 - made,

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 under this section 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 (

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 under this section 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

and not allowable as a deduction under section 215; (c) the payee and payor spouses are not members of the same household at the time of the payment; and (d) there is no liability to make any such payments 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.

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 under this section 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

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 includable in gross income under this section 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)

Section 71(a) provides that gross income generally includes amounts received as alimony or separate maintenance payments .

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 under this section 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

6651(a)(2) 1999 $12,185 $2,741.63 $1,584.05 After concessions by the parties, the issue remaining for decision is whether petitioner may deduct, as alimony under section 215, military retirement pension payments made to his former wife in the amount of $21,024.1 Background Some of the facts have been stipulated and are so found.

2 - Respondent determined a deficiency in Federal income tax of $6,448 for the 2000 taxable year. The issue for decision is whether unallocated support payments constitute “alimony or separate maintenance payments” that petitioner may deduct under section 215. Background Some of the facts have been stipulated and are so found. The stipulated facts and the related exhibits are incorporated herein by this reference. At the time of filing the petition, petitioner resided in Edgewater, Maryland. Pe

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 under this section 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 - 7

215(a) and (b). Payments are alimony that is includable in a spouse’s gross income when each of the following requirements is met: (1) The payments are made in cash, (2) the payments are received by (or on behalf of) the spouse under a divorce or separation instrument, (3) the divorce or separation instrument does not provide that the payments

After concessions,1 the issues for decision are: (1) Whether petitioner may deduct, as alimony under section 215, military retirement pension payments made to his former wife; (2) if the payments are not deductible under section 215, whether petitioner may nevertheless exclude from his income any portion of his military retirement pension paid to his former wife; (3) whether petitioner is liable for the addition to tax under section 6651(a)(1) for

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 includable in gross income under this section 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

215(a) and (b). Payments are alimony that is includable in a spouse’s gross income when each of the following requirements is met: (1) The payments are made in cash, (2) the payments are received by (or on behalf of) the spouse under a divorce or separation instrument, (3) the divorce or separation instrument does not provide that the payments

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 under this section 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

- Respondent determined a deficiency in Federal income tax of $6,373.56 for the 2000 taxable year. The issue for decision is whether unallocated support payments constitute “alimony or separate maintenance payments” that petitioner may deduct under section 215. Background Some of the facts have been stipulated, and they are so found. The stipulation of facts and the attached exhibits are incorporated herein by this reference. At the time the petition was filed, petitioner’s mailing address was M

ade pursuant to a divorce decree as alimony payments for purposes of Federal tax law. If the requirements of section 71 are met, the payments are includable in the payee spouse’s income under section 71, and are deductible by the payor spouse under section 215. One such requirement is that the payments be made in discharge of a legal obligation imposed “because of the marital or family relationship.” Sec. 71(a)(1). This requirement has been interpreted to require that the payments be in the natu

rce or separation instrument” is defined in section 71(b)(2) as a decree or written instrument meeting any of the requirements in subparagraphs (A), (B), or (C). Payments not received under a divorce or separation instrument are not deductible under section 215. Healey v. Commissioner, 54 T.C. 1702 (1970), affd. without published opinion 71-2 USTC par. 9536, 28 AFTR 2d 71-5217 (4th Cir. 1971); Jachym v. Commissioner, T.C. Memo. 1984-181; see also White v. Commissioner, T.C. Memo. 1984-65. The pa

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 under this section 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 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) t

includable in the gross income of W as alimony received, and not deductible by H as alimony paid. H filed a petition for redetermination. This Court held that the payments were alimony for Federal income tax purposes and were deductible by H, under sec. 215, I.R.C. H seeks recovery of litigation costs pursuant to sec. 7430, I.R.C., in the amount of $54,012.63. *This opinion supplements our previously filed opinion in Kean v. Commissioner, T.C. Memo. 2003-163. - 2 - Held: R’s position that the p

e criteria of sec. 71(b)(1), I.R.C. Specifically, the payments were received by W and, pursuant to State law, would have terminated at W’s death. Consequently, the payments are alimony for Federal income tax purposes, and are deductible by H, under sec. 215, I.R.C., and includable in the gross income of W, under secs. 61(a)(8) and 71(a), I.R.C. - 2 - Alan R. Adler, for petitioner in docket No. 8966-00. Jeffrey M. Garrod and Eugenia Yudanin, for petitioner in docket No. 9144-00. Joseph J. Boylan,

Alimony Section 215(a) permits a deduction for the payment of alimony which is includable in the gross income of the recipient under section 71.

axable year. “Alimony” is defined in section 71(b) as a payment if “the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215". The settlement entered into by petitioner with his former wife expressly stated that the payments agreed to would not be income to Ms. Tiley and would not be deductible by petitioner. Thus, the amount paid by petitioner to Ms. Tiley durin

Hawley, under section 215, and includable in the gross income of the payee spouse, Ms.

Section 71(a) provides that gross income generally includes amounts received as alimony or separate maintenance payments.

etitioner is eligible for head- of-household filing status. Issue 3. Alimony A taxpayer is allowed as a deduction an amount equal to the amount paid that constitutes “alimony”5 or a “separate maintenance [payment]” paid during his taxable year under section 215(a). Alimony is defined as a payment in cash that satisfies a four-part test set forth in section 71(b)(1). Respondent does not dispute that petitioner was responsible for paying alimony to Ms. Richards, and we are satisfied that the payme

Subject to further requirements not relevant here, the phrase “alimony or separate maintenance payment” is defined as “any payment in cash if * * * such payment is received by (or on behalf of) a spouse under a divorce or separation instrument”. Secs. 215(a), 71(b)(1)(A). Thus, payments of cash to third parties on behalf of the

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 under this section 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)

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 under this section 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

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 under this section 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 - 5 - household at the time such payment is made, a

r Partial Summary Judgment seeking a summary adjudication that his payment of $154,000 of Mrs. Berry’s attorney’s fees pursuant to the State court’s August 28, 1996, order constituted alimony within the meaning of section 71 that is deductible under section 215. Respondent filed an objection to petitioner’s motion, to which petitioner filed a reply. This matter was called for hearing at the Court’s motions session in Washington, D.C. Counsel for respondent appeared at the hearing and made an ora

lf of) a spouse under a divorce or separation instrument, - 5 - (B) the divorce or separation instrument does not designate such payment as a payment which is not includable in gross income under this section 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)

ns During the Years in Issue In this case, petitioner made "family support" payments to both Ms. Eads and Ms. Tang. Petitioner claims that the amounts - 7 - he paid to Ms. Eads and Ms. Tang were deductible as alimony during the years in issue under section 215. Ms. Eads Section 2153 provides a deduction for amounts paid by a taxpayer to a former spouse if the payee spouse is required to include these amounts in gross income under section 71.4 3Sec. 215 was amended by the Deficit Reduction Act of

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 under this section 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

tioner’s taxable income. Discussion Alimony is taxable to the recipient and is deductible by the payor. See secs. 71(a), 215(a). Child support payments, on the other hand, are neither includable in income under section 71 nor - 5 - deductible under section 215. See sec. 71(c). Alimony is 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

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 under this section 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

1999-273, we decided that “unallocated child support and maintenance” payments made pursuant to a Colorado State court decree were not deductible by the payor spouse under section 215 or includable in the income of the payee spouse under section 71.

r argument was advanced in McLane v. Commissioner, 46 T.C. 140 (1966), affd. 377 F.2d 557 (9th Cir. 1967), where the taxpayers had engaged in a series of transactions similar to those in the instant case. In the Revenue Act of 1964, Pub. L. 88-272, sec. 215(a), 78 Stat. 55, Congress added subsection (a)(3) of section 264 to address problems associated with amounts paid or accrued on indebtedness incurred with respect to several types of insurance contracts pursuant to a plan of systematic borrow

215 (1994), the statutory provision under which the consolidation took place, the identities of DBTC and BBNA continued in New Davenport. See also DeFoe v. Board of Pub. Instruction, 132 F.2d 971 (5th Cir. 1943); Cannon v. Dixon, 115 F.2d 913 (4th Cir. 1940). - 10 - 9,665,713 shares of its common stock for the stock of DBTC (other than fracti

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 under this section 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 main- tenance, the payee spouse and the payor spouse are not members of the same house- hold at the time such payment is made, and

215(a) and (b). A payment is alimony that is includable in a spouse's gross income when: (1) The payment is made in cash, (2) the payment is received by (or on behalf of) the spouse under a divorce or separation instrument, (3) the divorce or separation instrument does not provide that the payment is not reportable as alimony, (4) the spouses

deficiency sent to Ray and Janet, respondent disallowed the alimony deductions attributable to the payments upon the ground that the payments did not constitute alimony within the meaning of section 71(b), and, therefore, could not be deducted under section 215. In the notice of deficiency issued to Linda, respondent determined that the payments must be included in her income for the appropriate year as alimony under section 71. - 5 - Discussion Gross income includes amounts received as alimony.

Discussion Section 215 allows as a deduction an amount equal to the alimony or separate maintenance payments paid during the year.

Jaffe under section 215, and (2) what portion of the dividend income from the jointly owned money market account for 1994 is includable in the respective gross income of Mr.

Section 215 generally allows a husband a deduction for payments made to his wife which are includable in his wife’s gross income under section 71. To qualify as alimony under the applicable version of section 71(a)(1), the payments must be (1) imposed or incurred by the husband under a decree of divorce or separation or a written instrument inciden

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 under this section 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 -

Section 215 generally allows a husband a deduction for payments made to his wife which are includable in his wife’s gross income under section 71. To qualify as alimony under the applicable version of section 71(a)(1), the payments must be (1) imposed or incurred by the husband under a decree of divorce or separation or a written instrument inciden

s for 1992 and 1993 in the amounts of $3,954 and $4,019, respectively. Respondent determined that petitioner failed to establish that the $13,000 he paid during each of the taxable years 1991, 1992, and 1993 qualified for the alimony deduction under section 215. This Court rendered Ryan v. Commissioner, T.C. Memo. 1998-331, deciding that the amounts paid by petitioner to his former wife were properly deductible as alimony. Petitioner now requests the Court to award him reasonable litigation cost

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 under this section 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)

Miller qualified as (1) alimony includable in the income of the payee spouse under section 71 and deductible by the payor spouse under section 215, or (2) child support excludable from the income of the payee spouse under section 71(c) and nondeductible by the payor spouse.

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 under this section 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)

Jaffe under section 215, and (2) what portion of the dividend income from the jointly owned money market account for 1994 is includable in the respective gross income of Mr.

215 (1994), the statutory provision under which the consolidation took place, the identities of DBTC and BBNA continued in New Davenport. See also DeFoe v. Board of Pub. Instruction, 132 F.2d 971 (5th Cir. 1943); Cannon v. Dixon, 115 F.2d 913 (4th Cir. 1940).

lf of) a spouse under a divorce or separation instrument, - 7 - (B) the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section 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)

* * * The payments are intended to qualify as income to the Wife and deductible to the Husband for tax purposes, pursuant to section 71 and section 215 of the Internal Revenue Code of 1986 as amended.

alf 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 under - 6 - this section 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)

ne 5, 1996. Petitioner husband (H) and petitioner wife (W) were divorced. Subsequently, H was directed by a California court to pay monthly "family support" payments (the marital payments) to W. H deducted the marital payments as alimony pursuant to sec. 215, I.R.C. W did not report the marital payments as gross income pursuant to sec. 71, I.R.C. R disallowed H's deduction and included the marital payments in W's income. 1. Held: The marital payments are not alimony; therefore H may not deduct s

77. - 11 - was reenacted throughout the years,6 and carried into current section 882(c)(2).7 Sections 874(a) and 882(c)(2) are draconian provisions designed to induce foreign corporations and nonresident alien individuals to file tax returns. In Blenheim Co. v. Commissioner, 125 F.2d 906, 909 (4th Cir. 1942), affg. 42 B.T.A. 124

Alimony is any payment in cash if, among other requirements, it is received by (or on behalf of) a spouse under a divorce or separation instrument. Sec. 71(b)(1)(A). A divorce or separation instrument is: (a) A decree of divorce or separate maintenance or a written instrument incident to the decree; (b) a written separation agreement;

ound Alimony is taxable to the recipient and is deductible by the payor. Secs. 71(a), 215(a). Alimony payments are not child support payments. Sec. 71(c). Child support payments are neither includable in income under section 71 nor deductible under section 215. Child support is that part of a payment which the divorce instrument fixes as payable for the support of the children of the payor spouse. Sec. 71(c)(1). An amount is treated as fixed under section 71(c)(1) if it will be reduced “on the h

Commissioner, supra. If the payments in these cases are alimony, then Dr. Ehrenworth may deduct the payments under section 215(a), and Mrs. Spector must include the amounts in income under section 61(a)(8). However, if the payments are a property settlement, Dr. Ehrenworth may not deduct them and Mrs. Spector need not include th

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 under this section 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)

Section 215 permits a deduction for alimony payments, as defined in section 71. For purposes of this case, payments may qualify as alimony if, in addition to satisfying other requirements, they are received by a spouse under a decree of divorce or of separate maintenance. Sec. 71. In this case, the -30- original divorce decree was entered in accor

ne 5, 1996. Petitioner husband (H) and petitioner wife (W) were divorced. Subsequently, H was directed by a California court to pay monthly "family support" payments (the marital payments) to W. H deducted the marital payments as alimony pursuant to sec. 215, I.R.C. W did not report the marital payments as gross income pursuant to sec. 71, I.R.C. R disallowed H's deduction and included the marital payments in W's income. 1. Held: The marital payments are not alimony; therefore H may not deduct s

Commissioner, supra. If the payments in these cases are alimony, then Dr. Ehrenworth may deduct the payments under section 215(a), and Mrs. Spector must include the amounts in income under section 61(a)(8). However, if the payments are a property settlement, Dr. Ehrenworth may not deduct them and Mrs. Spector need not include th

to the Tax Court Rules of Practice and Procedure. Respondent determined a deficiency of $802 in petitioners' 1990 Federal income tax. The Court must decide whether payments - 2 - made by petitioner husband are deductible as alimony payments under section 215. For clarity and convenience, the findings of fact and opinion have been combined. Some of the facts in this case have been stipulated and are so found. Petitioners resided in Brocton, New York, at the time they filed their petition. Petiti

77. Sec. 233 of the Revenue Act of 1932, 47 Stat. 230, provided that “A foreign corporation shall receive the benefit of the deductions and credits allowed to it in this title only by filing or causing to be filed with the collector a true and accurate return * * * in the manner prescribed in this title”. The language of sec. 882

- 4 - OPINION Section 215 allows a deduction for alimony payments which meet the definition of section 71(b).3 Yoakum v.

alf of) a spouse under a divorce or separation instrument, (B) the divorce or separation instrument does not designate such payment as a payment which - 6 - is not includible in gross income under this section 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)