Jim Maule has a typically thoughtful discussion of the split in the circuits over the definition of alimony for § 71 purposes:

• Kean v. Commissioner, Nos. 04-2931 & 04-3018 (3d Cir., 5/10/05) (payments made by husband pursuant to support order issued during divorce proceeding constitute alimony and thus were deductible by husband and income to wife)
• Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir. 2002) (payments made by husband pursuant to support order issued during divorce proceeding did not constitue alimony and thus were not deductible by husband or income to wife)

Here is part of Jim’s analysis of the two cases:

The Third Circuit rejected Lovejoy … because it "believe[d] that the decision[] rel[ies] too heavily on the intricacies of family law and fail[s] to take into account the overall purpose of § 71."  Whoa!  Isn’t the overall purpose of § 71 to limit the deduction/inclusion treatment to spousal support, in contrast to child support and property or equity transfers?  The Third Circuit’s decision has the effect of making child support deductible to the payor spouse and includible as income by the payee spouse.  That result is flat-out contrary to the "overall purpose of § 71."  Worse, the Third Circuit brushed off Lovejoy … becauset [it] relied "too heavily" on the "intricacies of family law."  Whoa again!  Isn’t that the real, though unfortunate, characteristic of law?  Intricacy abounds.  Is it brushed aside because it is too difficult?  My students surely would like that approach, though I doubt their future clients would!  The fact that the Tax Court concluded New Jersey law WOULD require continuation of the payments demands that the Third Circuit explore more carefully New Jersey law to determine whether, in fact, the fifth and sixth requirements of the "tax alimony" definition had been satisfied.

Read Jim’s entire post here.