You know the rest. So now does Danial Robert Martin, after the lesson is once again taught by Chief Special Trial Judge Panuthos in Danial Robert Martin and Christina Martin, 2013 T.C.Sum. Op. 31, filed 4/17/13.

Like many a 7463, the plot is simple. Danial divorces Ruth after 29 years, and the decree requires Danial to pay $1K per month spousal support. Three years into the program, Ruth falls ill, loses her job, and asks Danial for more support. Danial stumps up an additional $1300, and wants the alimony deduction.

Of course, they don’t modify the divorce decree, exchange letters or anything else. Only a year later does Ruth come up with a couple of letters telling the story, and Danial has nothing but his good deed to show IRS.

CSTJ Panuthos: “The first requirement is that the payment be received by or on behalf of a spouse under a divorce or separation instrument. Sec. 71(b)(1).” 2013 T. C. Sum. Op. 31, at p. 5.

Now there’s plenty of latitude as to what constitutes a “divorce or separation instrument.” See my blogpost “The Magic Paper Saves the Deduction”, 4/7/11. Here, as there, IRS does not dispute Danial’s deal meets the rest of the Section 71(b) tests: (a) doesn’t say not includible in payee’s income; (b) payor and payee not in same household; and (c) no liability to pay after payee spouse’s death. See 2013 T. C. Sum. Op. 31, at p. 5, footnote 1.

But no writing.

CSTJ Panuthos: “The letters from Ruth that petitioner submitted do not show a meeting of the minds between her and petitioner and therefore do not collectively constitute a written separation agreement.

“Petitioner’s [Danial’s] testimony was credible, and his willingness to provide additional funds to his former spouse is admirable. While the result may seem harsh, we are bound by the provisions of the Internal Revenue Code defining the circumstances in which payments are deductible as alimony under sections 71(b) and 215(a).” 2013 T.C. Sum.Op. 31, at p. 7 (Citation and footnote omitted, but CSTJ Panuthos notes that Ruth didn’t report the payments as income, so Danial should not get the deduction, lest an “asymmetry” result).

An “asymmetry”, by the way, means if someone gets a deduction, someone else gets income.

So Danial and other generous divorcees, get it in writing–from both of you.