2000 Tax Ct. Memo LEXIS 106">*106 Decisions will be entered under Rule 155.
MEMORANDUM FINDINGS OF FACT AND OPINION
GALE, JUDGE: By separate notices of deficiency, respondent determined the following deficiencies, addition to tax, and penalty with respect to petitioners' Federal income taxes:
Hermine Leventhal
_________________
Addition to Tax Penalty
Year Deficiency Sec. 6651(a)(1) Sec. 6662(a)
____ __________ _______________ ____________
1990 $ 17,957 $ 4,434 $ 3,591
1991 17,065 -- --
Harvey R. Leventhal
Year Deficiency
____ __________
1990 $ 18,928
2000 Tax Ct. Memo LEXIS 106">*107 1991 14,345
These cases were consolidated for trial, briefing, and opinion. All section references are to the Internal Revenue Code in effect for the years in issue, and all Rule references are to the Tax Court Rules of Practice and Procedure, unless otherwise indicated.
After concessions, 1 the issue for decision is whether certain payments made by petitioner Harvey Leventhal (Harvey) constitute alimony or separate maintenance payments, includable in the gross income of petitioner Hermine Leventhal (Hermine) under
2000 Tax Ct. Memo LEXIS 106">*108 FINDINGS OF FACT
Some of the facts have been stipulated and are so found. The stipulation of facts, together with the exhibits attached thereto, is incorporated herein by this reference. Hermine resided in New York, New York, and Harvey had a legal address in Staten Island, New York, at the time their petitions were filed.
Hermine and Harvey were married on July 5, 1954. In or around December 1987, petitioners separated due to marital difficulties. At this time, Hermine moved out of the house they had shared on Emerson Drive, Staten Island, New York (marital home), and stayed with various friends from December 1987 until June or July 1988. At some point in 1988, Hermine commenced an action for divorce in the Supreme Court of the State of New York. Hermine engaged an attorney, Charles Moser, to handle the divorce proceedings and property settlement and to negotiate a place for her to live in the interim. Harvey engaged an attorney, Irvin Rosenthal, to handle the divorce proceedings and property settlement as well as any interim matters.
On April 1, 1988, Mr. Rosenthal sent a letter to Mr. Moser (April 1 letter). Clearly marked as "PRIVILEGED AND CONFIDENTIAL AND WITHOUT PREJUDICE", 2000 Tax Ct. Memo LEXIS 106">*109 the letter states:
Dear Mr. Moser:
This is in reply to your letter of March 21,
1988. 2
1. Occupancy of Marital Home.
Dr. Leventhal is amenable to alternate
sharing of the marital home on an equal time-share
basis with three months alternatively to the wife and
husband. The foregoing is contingent on the wife
agreeing to presently placing the marital home on the
market for sale at the highest obtainable market price,
with the net proceeds of sale to be held in escrow,
until a final judgment of the Court in the divorce
action, or agreement with the parties.
The husband will pay all normal and usual
expenses of maintenance and operation of the marital
home and the alternate residence the occupancy of both
of which are to be shared by the parties. Our clients
shall agree with respect to the alternate residence.
Accordingly, no appraisal will be required
since the home will presumably be sold before the
conclusion of the action.
2000 Tax Ct. Memo LEXIS 106">*110 2. Tangible Personal Property.
With regard to the tangible personalty of
value, viz., antiques, our client Dr. Leventhal is
agreeable to having the parties select the items on an
alternate selection basis, with the first selection to
the wife. This again will obviate the necessity for an
appraisal of the personalty.
3. Professional Corporation's Payment.
In view of the fact that Mrs. Leventhal is no
longer on the payroll of the professional corporation,
no further payments of $ 154 bi-weekly can be, nor will
they, be made to Mrs. Leventhal.
4. Counsel Fee.
Our client and we both feel that no counsel
fee payment by the husband is indicated in this action since
your client Mrs. Hermine Leventhal has assets in her own name
and control in excess of $ 1,700,000 of which at least $ 374,000
is in liquid funds in the form of bank funds and marketable
securities, exclusive of real property.
Mrs. Leventhal can well afford to advance2000 Tax Ct. Memo LEXIS 106">*111 her own
counsel and expert fees. Our client did agree without prejudice,
to advance $ 2,500 toward your client's expert fees and same is
enclosed under separate cover.
5. Matrimonial Support.
Mrs. Leventhal has available to her $ 450 per week from
a joint account regularly and periodically funded by her husband
and an additional $ 200 per week paid to her by her husband from
funds of a joint account. The wife pays $ 120 a week for a maid
from the aforesaid sums, and the husband has in the past and
continues to pay all other expenses in connection with the
operation and maintenance of the home, and further pays all
charge accounts.
6. Review of Professional Corporation.
As I advised you on the phone on March 31st, and as my
partner Rona Shays previously wrote to you, if you will send us
a list of the books and records of the professional corporation
you wish to have examined by your accountants, the years
involved, and the names of your accountants, we will arrange to
have2000 Tax Ct. Memo LEXIS 106">*112 the professional corporation arrange a mutually
satisfactory appointment for your experts to review same.
Obviously, there will be excluded from your inspection any
records pertaining to patients, so as not to breach patient
confidentiality afforded them by law.
7. Venue.
Our position regarding venue is clearly and
succinctly set forth in our motion papers. It is our
intention to timely pursue our motion.
Very truly yours,
Irvin H. Rosenthal
On June 1, 1988, Mr. Moser sent a letter to Mr. Rosenthal stating:
Dear Mr. Rosenthal:
With reference to your telephone conversation with my
offices yesterday, our prior communications and phone
conversations and with specific reference to the Lease
from SILVER LAKE ASSOCIATES (Owner) to our Clients
(Tenants), it is understood and agreed as follows:
(1) our clients will alternate, on a two (2) month
each basis, both apartment 5N on the fifth floor of 961
Victory2000 Tax Ct. Memo LEXIS 106">*113 Boulevard, and the marital home located at 2
Emerson Drive, both Staten Island, New York; Harvey
Leventhal to occupy the home for the months of June and
July 1988, (Hermine Leventhal to occupy the apartment
during that period) and Hermine Leventhal to occupy the
home for the months of August and September 1988
(Harvey Leventhal to occupy the apartment during that
period) and thereafter they shall similarly alternate
the occupancy of both premises.
(2) Harvey Leventhal will pay all normal and usual
expenses of maintenance and operation of the marital
home and the alternate residence, the occupancy of
which are to be shared by the parties as aforesaid.
Of course, as we discussed on the phone earlier today,
all of the foregoing is based upon SILVER LAKE
ASSOCIATES (Owner) accepting the changes you made in
the Lease previously forwarded.
Kindly acknowledge the acceptance of the above
conditions by signing and returning to me, via my
messenger, the enclosed copy of the instant
communication together with both2000 Tax Ct. Memo LEXIS 106">*114 copies of the Lease.
Very truly yours,
CHARLES E. MOSER
CEM:tp
Encl.
UNDERSTOOD, ACCEPTED AND AGREED:
ROSENTHAL & SHAYS, by:
IRVIN H. ROSENTHAL,ESQ.
Attorneys for Defendant
HARVEY LEVENTHAL
The letter was signed by Mr. Moser and countersigned by Mr. Rosenthal on behalf of Harvey.
Later that day, Mr. Moser sent a second letter to Mr. Rosenthal stating:
Dear Mr. Rosenthal:
Enclosed herewith is a signed copy of the communication
hand delivered to your offices earlier today.
This communication will further confirm the agreement
of the parties and our understanding regarding the
alternating occupancy of the marital home and Apartment
5N at 961 Victory Boulevard, Staten Island, New York,
on a two (2) month basis, assuming that the changes
made in2000 Tax Ct. Memo LEXIS 106">*115 the Apartment Lease are accepted by SILVER LAKE
ASSOCIATES (Owner-Lessor), as follows:
(1) the marital home located at 2 Emerson Drive,
Staten Island, New York, will be forthwith placed on
the market and listed for sale at the highest fair
market price with a Licensed Real Estate Broker a
member of the local Multiple Listing Service; that such
a listing will not preclude a private sale at no less
than the listing price; and that we will hold the net
proceeds of the sale in escrow, the same to be released
and distributed pursuant to the Judgment of Divorce to
be entered herein or the mutual agreement, in writing,
of the parties.
In the haste of the hand delivery of my earlier
communication the instant "listing and sale" provision
was omitted.
Kindly acknowledge the acceptance of the above by
signing and returning to me, in the envelope provided,
the enclosed copy of this letter.
Very truly yours,
CHARLES E. MOSER
2000 Tax Ct. Memo LEXIS 106">*116 CEM:tp
UNDERSTOOD, ACCEPTED AND AGREED:
ROSENTHAL & SHAYS, By:
IRVIN H. ROSENTHAL,ESQ.
Attorneys for Defendant
Again, this letter was signed by Mr. Moser and countersigned by Mr. Rosenthal on behalf of Harvey. These two letters set forth above dated June 1, 1988, are collectively referred to hereinafter as the "June 1 letters".
During 1990 and the first 6 months of 1991, petitioners alternately occupied the apartment on Victory Boulevard in Staten Island, New York (apartment), and the marital home on a 2-month rotation; i.e., each petitioner occupied one of the residences for 2 months, and then petitioners switched locations. Petitioners were designated as tenants on the lease for the apartment. 3 In June 1991, Harvey refused to renew the lease on the apartment, and from July 1, to December 31, 1991, petitioners shared occupancy of the marital home but did not live together as husband and wife. Title to the marital home was in Hermine's name during this 2-year period.
2000 Tax Ct. Memo LEXIS 106">*117 During 1990, Harvey made cash payments totaling $ 26,358.65 to Hermine directly. The parties have stipulated that Harvey also made payments "on Hermine's behalf" for that year, specifically described as follows:
$ 891.30 as car payments
8,331.02 as mortgage payments on the marital home
6,720.64 as rent for the apartment
812.75 for furniture rental
1,252.10 to Brooklyn Union Gas
1,829.00 to a gardener
3,521.02 to Con Edison for electricity
1,654.12 to Quinlan Oil
1,172.33 to Town & Country Pool
8,095.12 as insurance payments
432.29 to New York Telephone
230.74 as miscellaneous expenses (plumbing,
electricity, water, etc.)
On his 1990 return, Harvey deducted as alimony $ 66,275. 4
During 1991, Harvey made cash payments totaling $ 25,012.55 to Hermine directly. The parties have stipulated that Harvey also made payments "on Hermine's behalf" for that year, specifically described as follows:
2000 Tax Ct. Memo LEXIS 106">*118 $ 3,623.49 as car payments
9,166.00 as mortgage payments on the marital home
3,398.55 as rent for the apartment
419.19 to Brooklyn Union Gas
3,001.00 to a gardener
2,357.72 to Con Edison for electricity
2,983.12 to Quinlan Oil
887.42 to Town & Country Pool
9,952.07 as insurance payments
185.33 to New York Telephone
1,248.93 as miscellaneous expenses (plumbing,
electricity, water, etc.)
On his 1991 return, Harvey deducted as alimony $ 62,999. 5
During 1990 and 1991, with certain exceptions, Harvey sent weekly checks to Hermine. These checks were generally for $ 530, although they were frequently for lesser amounts, sometimes with an offset for some item such as utilities noted on the check and sometimes without explanation. Similarly, Harvey generally made out monthly checks to Hermine during this period on which "car payment" was noted.
2000 Tax Ct. Memo LEXIS 106">*119 Harvey did not make the $ 530 weekly payments unfailingly. On June 18, 1991, Hermine's counsel, Mr. Moser, sent a letter to Harvey's counsel, Mr. Rosenthal, as follows:
Dear Mr. Rosenthal:
I am advised that your client [Harvey] has failed
to remit his maintenance payments for the following
periods: May 31st; June 7th; and June 14, 1991,
representing the total sum of $ 1,590.00 (@ $ 530.00).
In addition his check representing the car lease
payment for the month of June, in the sum of $ 297.10,
has also not been remitted.
The only payment made of late was his check, just
received and without explanation whatsoever, dated
June 7, 1991 and in the sum of $ 210.00.
* * * * * * *
* * * if the total monies due and owing my client
are not received by her on or before June 20, 1991, I
will, without further notice, seek judicial
intervention and make a formal application to the court
on June 24th. * * *
A second letter that month from Hermine's to Harvey's2000 Tax Ct. Memo LEXIS 106">*120 counsel similarly took the position that Harvey was in arrears with respect to his obligation to make maintenance and car payments. Finally, in February 1992, before petitioners' execution of a final settlement agreement, Hermine's counsel sent a letter to Harvey's counsel suggesting a need to verify maintenance payments for the last one- third of 1991.
During 1990 and 1991, Harvey paid $ 6,724 and $ 7,471, respectively, for homeowner's insurance on the marital home. The policies listed Hermine as the named insured, and covered the dwelling as well as certain personal property therein, including fine art, jewelry, and furs. The remaining amounts stipulated as for insurance covered life and other insurance.
There was no court decree of divorce or separate maintenance in effect during 1990 or 1991. A settlement agreement providing for the division of petitioners' marital property and settlement of all their respective obligations was executed by petitioners on February 27, 1992, and a final Judgment of Divorce was granted by the Supreme Court of the State of New York on March 6, 1992.
For both the 1990 and 1991 taxable years, petitioners each filed Federal income tax returns under2000 Tax Ct. Memo LEXIS 106">*121 the status of married filing separate return. As noted earlier, Harvey claimed a deduction for alimony payments of $ 66,275 in 1990 and $ 62,999 in 1991. Hermine did not include any amount as alimony in her gross income for those years.
Respondent issued inconsistent notices of deficiency to Harvey and Hermine, disallowing Harvey's alimony deductions and determining that Hermine must include in gross income for 1990 and 1991, $ 66,275 and $ 64,994, 6 respectively.
2000 Tax Ct. Memo LEXIS 106">*122 OPINION
"Alimony or separate maintenance payments", as defined in
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 under this section and not
allowable as a deduction under
(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 of2000 Tax Ct. Memo LEXIS 106">*123 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.
The parties do not dispute that the requirements of
WERE PAYMENTS RECEIVED UNDER A DIVORCE OR SEPARATION INSTRUMENT?
Under
(A) a decree of divorce or separate
maintenance or a written instrument incident
to such a decree,
(B) a written separation agreement, or
2000 Tax Ct. Memo LEXIS 106">*124 (C) a decree (not described in
subparagraph (A)) requiring a spouse to make
payments for the support or maintenance of
the other spouse.
As no decree of divorce or separate maintenance was in effect during the years in issue, we must decide whether all or some of the payments were received by or on behalf of Hermine under a written separation agreement.
The term "written separation agreement" is not defined in the Code, the applicable regulations, or in the legislative history.
Harvey takes the position that the April 1 and June 1 letters together constitute a written separation agreement within the meaning of
Moreover, Harvey is selective in choosing the terms of the April 1 letter that he argues evidence an agreement regarding Hermine's support. In an effort to show an agreed $ 530 per week support obligation, Harvey cites the letter's language in the "Matrimonial Support" paragraph which represents that $ 450 per week is "available" to Hermine from an account funded by Harvey, that another $ 200 per week is paid by him, and that $ 120 per week from these sums is paid by Hermine "for a maid". However, Harvey ignores language in the same paragraph which represents that he in addition "pays all charge accounts"; he offers no explanation why the purported support agreement embodied in the April 1 letter either includes or excludes an obligation by Harvey to pay charge accounts.
It makes no difference2000 Tax Ct. Memo LEXIS 106">*127 to our conclusion that Harvey generally (though far from consistently) paid Hermine $ 530 per week during the years in issue, which she accepted and presumably used for her support. Mere acquiescence and receipt of a payment by the recipient spouse do not transform a unilateral offer of support into the bilateral written agreement contemplated in
Harvey argues that Hermine's failure to agree to the April 1 letter in writing does not by itself make the letter insufficient. In support of this argument, Harvey cites
Finally, Harvey argues that the "Matrimonial2000 Tax Ct. Memo LEXIS 106">*129 Support" paragraph of the April 1 letter was incorporated by reference in the first of the June 1 letters. This June 1 letter begins:
With reference to your telephone conversation with my
offices yesterday, our prior communications and phone
conversations and with specific reference to the Lease
from SILVER LAKE ASSOCIATES (Owner) to our Clients
(Tenants), it is understood and agreed as follows
* * *.
Harvey contends that the reference to "our prior communications" incorporated the terms of the April 1 letter. We reject this contention. The reference is too vague to support such a construction, particularly in the context of the specificity with which the June 1 letters address their intended subject of living arrangements.
While the April 1 letter does not constitute or form part of a written separation agreement within the meaning of
Hermine argues that the June 1 letters are not a written separation agreement because they constitute "only an agreement as to providing a place to live" for her. Respondent appears to agree; while conceding that the June 1 letters constitute a "meeting of the minds", he nevertheless contends that there was no meeting of the minds "on the issue of alimony or separate maintenance". We disagree. To the extent respondent suggests that an agreement to pay Hermine's rent or mortgage is not an agreement to pay alimony, he contradicts his own regulations. See
As noted, neither the statute nor the regulations define "written separation agreement" as used in
Logically, it appears Congress was interested in a
clear statement in written form of the terms of support
where the parties are separated. In this manner it is
administratively convenient for the Commissioner to
apprise himself of the amount of gross income to the
2000 Tax Ct. Memo LEXIS 106">*132 wife and the corresponding deduction allowable to the
husband. * * * [
(1972). 8]
We have rejected the Commissioner's attempt to require formalities in a separation agreement when we are satisfied that mutual agreement is evidenced. See id. (rejecting any requirement that the agreement recite the fact of separation). Nor need the agreement state a specific dollar amount of support; it is sufficient if the agreement states an ascertainable standard. See
Applying this conclusion to the payments that were stipulated as made by Harvey either directly to or on behalf of Hermine, we find that some of the payments clearly fall outside the terms of the June 1 letters, which constitute the only
However, the mortgage payments on the marital home and rent for the apartment clearly do come within the terms of the written separation agreement embodied in the June 1 letters and therefore were made "under" a divorce or separation instrument. We believe the remaining payments, with certain exceptions in the case of "insurance payments", were also made under the terms of the June 1 letters -- that is, based on the available evidence, they may fairly2000 Tax Ct. Memo LEXIS 106">*135 be inferred as constituting "normal and usual expenses of maintenance and operation" of the two residences. We base this conclusion on their stipulated descriptions (relating to utilities, a gardener, a pool, etc.), the undisputed facts that Hermine owned the marital home and regularly occupied it as well as the apartment, and on the stipulation that these payments were "on behalf of" Hermine. Although Hermine contends -- for the first time on reply brief -- that some of these payments have not been shown to be connected to the marital home or apartment, she has offered no evidence to support this speculation; we believe the stipulation that the payments, as described, were "on her behalf" supports the inference that the payments were related to the marital home or apartment in the absence of any other evidence.
We reach a different conclusion with respect to some of the insurance payments. The stipulated description "insurance payments" is not, on its face, connected with the operation or maintenance of a residence. Further, there is other evidence in the record bearing upon the appropriate classification of these payments; namely, Harvey's canceled checks and the homeowner's policies2000 Tax Ct. Memo LEXIS 106">*136 on the marital home. A review of the checks written for insurance and the homeowner's policies shows that $ 6,724 of the stipulated "insurance payments" of $ 8,095.12 made in 1990 was for premiums on a homeowner's policy covering the marital home. The remaining $ 1,371.12 went towards life insurance or other insurance not shown to be connected to the marital home or apartment. Similarly, in 1991 $ 7,471 of the stipulated "insurance payments" of $ 9,952.07 was for premiums on a policy covering the marital home. The remaining $ 2,481.07 went towards life or other unspecified insurance. 9 We thus conclude that insurance payments of $ 6,724 in 1990 and $ 7,471 in 1991 for coverage of the marital home 10 were made "under" the written separation agreement embodied in the June 1 letters; the remaining insurance payments were not.
2000 Tax Ct. Memo LEXIS 106">*137 WERE THE PAYMENTS TO THIRD PARTIES RECEIVED "ON BEHALF OF" HERMINE?
In the instant case, Harvey's payments stipulated2000 Tax Ct. Memo LEXIS 106">*138 as "on Hermine's behalf" covered both his own housing expenses as well as those of Hermine. It is Harvey's position that the entire amount of the expenses he paid with respect to the marital home and apartment are deductible as alimony, notwithstanding that he occupied each of those properties for approximately the same number of months that Hermine did during the period in issue. What Harvey's argument overlooks is that the separation agreement we have found within the June 1 letters both delineated an obligation for Harvey (payment of the expenses associated with the marital home and apartment) and secured for him a valuable right (sole occupancy for 6 months annually of each residence). Insofar as Harvey's payments secured for him a right of occupancy and defrayed the costs of his occupancy, we conclude that they were not made "on behalf of" Hermine within the meaning of
We shall determine which portion of the payments made by Harvey with respect to the marital home and apartment related to his own occupancy based on the available evidence in the record. The June 1 letters indicate that both petitioners were tenants with respect to the lease of the apartment and provided that they would equally share occupancy in alternating 2-month intervals. Payments of the rent obligations of the payee spouse under the terms of a divorce or separation instrument are payments "on behalf of" the payee spouse that qualify as alimony.
The mortgage payments on the marital home and payment of premiums on the homeowner's policies covering the home require different treatment. Hermine held sole title to the marital home. Neither Hermine nor Harvey offered evidence concerning the terms of the mortgage indebtedness on it. In the absence of any other evidence, we rely on Hermine's stipulation that the mortgage payments on the marital home were "on her behalf" to conclude that Hermine alone was liable on the indebtedness. The temporary regulations provide that payment of the mortgage liabilities of the payee spouse under the terms of a divorce or separation2000 Tax Ct. Memo LEXIS 106">*141 instrument qualifies as alimony, see
2000 Tax Ct. Memo LEXIS 106">*142 Any payments to maintain property owned by the payor
spouse and used by the payee spouse (including mortgage
payments, real estate taxes and insurance premiums) are
not payments on behalf of a spouse even if those
payments are made pursuant to the terms of the divorce
or separation instrument.
Temporary Income Tax Regs., supra.]
We infer from the regulation that payments on a mortgage or of insurance or taxes relating to property owned by one spouse do not benefit, and are not "on behalf of", the nonowner spouse who (merely) uses the property pursuant to a divorce or separation instrument. Thus the mortgage and homeowner's insurance payments are entirely "on behalf of" Hermine, notwithstanding Harvey's part use of the marital home. Would Harvey's Liability for the Payments Have Terminated With Hermine's Death?
Under
2000 Tax Ct. Memo LEXIS 106">*144 Under New York law, "maintenance" is defined as:
payments provided for in a valid agreement between the
parties or awarded by the court in accordance with the
provisions of subdivision six of this part, to be paid
at fixed intervals for a definite or indefinite period
of time, but an award of maintenance shall terminate
upon the death of either party or upon the recipient's
valid or invalid marriage, or upon modification
pursuant to * * * [sec. 236B9.b.]. [N.Y. Dom. Rel. Law
sec. 236B1.a. (McKinney 1999); emphasis added.]
Thus, the statute differentiates between maintenance payments made pursuant to agreement and those made under court decree. See Scheinkman, Practice Commentaries, in McKinney's Consol. Laws of N.Y., Book 14, Domestic Relations Law C236B:10, at 330-331 (1999). With respect to court-awarded maintenance, the payments automatically terminate upon any of the events listed in the statute (terminating events). See id. In the case of maintenance payments made pursuant to agreement, the obligation generally terminates upon the death of either spouse, but the parties may modify or extend2000 Tax Ct. Memo LEXIS 106">*145 the duration of the payments by agreement. See
2000 Tax Ct. Memo LEXIS 106">*146 CONCLUSION
For the reasons discussed above, Harvey's direct payments to Hermine of $ 26,358.65 in 1990 and $ 25,012.55 in 1991 and the stipulated "car payments" of $ 891.30 in 1990 and $ 3,623.49 in 1991 do not qualify as alimony or separate maintenance payments under
2000 Tax Ct. Memo LEXIS 106">*147 To reflect the foregoing and concessions,
Decisions will be entered under Rule 155.
1. Respondent concedes that petitioner Hermine Leventhal is not liable for the addition to tax under sec. 6651(a)(1) or the penalty under sec. 6662(a).↩
2. The referenced Mar. 21, 1988, letter is not a part of the record in this case.↩
3. We reach this conclusion on the basis of the first June 1 letter, which makes specific reference to the "Lease from SILVER LAKE ASSOCIATES (Owner) to our Clients (Tenants)".↩
4. Although the total amount stipulated as paid in 1990 directly to or on Hermine's behalf equals $ 61,301.08, Harvey claimed an alimony deduction for that year of $ 66,275. The parties have offered no explanation for this discrepancy. However, because we conclude that Harvey is entitled to an alimony deduction for 1990 that is substantially less than $ 61,301.08, the discrepancy has no significance.↩
5. As was the case for 1990, the amount deducted as alimony by Harvey for 1991 ($ 62,999) does not equal the amount stipulated as paid directly to or on behalf of Hermine ($ 62,235.37). The parties have also offered no explanation for this discrepancy, but it is likewise without significance because we conclude that Harvey is entitled to an alimony deduction for 1991 that is less than $ 62,235.37.↩
6. The alimony income determined for Hermine in 1990 matches the alimony deduction disallowed for Harvey in that year. However, for 1991 the amount of alimony income determined for Hermine exceeds the deduction disallowed for Harvey by $ 1,995. Furthermore, as with Harvey's deductions, the income attributed to Hermine in both years exceeds the amounts stipulated as received directly by or on behalf of Hermine. As we sustain respondent's determination with respect to Hermine's alimony income in amounts less than those stipulated as received by her in each year, these discrepancies are without significance.↩
7. None of the parties dispute that each petitioner's attorney had authorization to execute the letters on that petitioner's behalf.↩
8. Although
9. We note in this regard the likelihood, in the context of the record, that some of the generically described insurance payments were for insurance covering the automobile Harvey was providing for Hermine.↩
10. While a portion of the homeowner policy premiums for the marital home represented extra coverage for "jewelry and furs", we conclude that insurance for such high value contents fairly falls within the terms of "normal and usual expenses of maintenance and operation" of a residence.↩
11. To the extent the mortgage payments included "qualified residence interest" within the meaning of sec. 163(h), Hermine may be entitled to a deduction for such interest in the year paid. We expect the parties to address this issue as part of their Rule 155 computations.↩
12.
Q-11. What are the consequences if the divorce or
separation instrument fails to state that there is no
liability for any period after the death of the payee
spouse to continue to make any payments which would
otherwise qualify as alimony or separate maintenance
payments?
A-11. If the instrument fails to include such a
statement, none of the payments, whether made before or
after the death of the payee spouse, will qualify as
alimony or separate maintenance payments.↩
13. Although we concluded in
14. Although in the event of Hermine's death, Harvey might remain contractually liable to third parties for some of these payments (e.g., apartment rent, utility bills, etc.), any such post mortem payments would no longer be received "on behalf of"