concurrence">Simpson, J.,

concurring: I agree with the result reached by the majority, but my reasons for so concluding are somewhat different.

The purpose of sections 71 and 215 is to permit the husband and wife to enter into arrangements that will shift the tax burden with respect to alimony payments to the wife. See H. Rept. No. 2333, to accompany the Revenue Act of 1942, 77th Cong., 2d Sess., p. 46; see also Commissioner v. Lester, 366 U.S. 299 (1961); Chester L. Tinsman, 47 T.C. 560 (1967). However, the tax burden with respect to alimony payments is not shifted unless the intent to do so is clearly manifested in the instrument under which the payments are made. See Commissioner v. Lester, supra; Chester L. Tinsman, supra. Although the cases requiring the manifestation of such an intent were concerned with the distinction between alimony and support payments, the principles established by them should also be applied to the issue in this case.

It is clear, in this case, that the arrangement under the original decree was designed to provide for the payment of a principal sum in installments within a period of 10 years, and that under such arrangement, the husband was not entitled to deduct such payments and the wife was not required to include them in her income. The subsequent “alimony agreement” does not by its terms provide for the modified payments to be made over a period of more than 10 years, nor does such agreement indicate that the husband and wife agreed to extend the period under the original decree for payment of the installments. Thus, clearly, the original intention was not to shift the tax burden; although the alimony agreement reflects that the parties agreed to some changes in the arrangement for the payments to the wife, it does not indicate any intention to change the tax consequences of the original arrangement under the decree. The wife had no apparent reason to believe that she would become taxable on such payments as a residt of the changes in the arrangement made by the alimony agreement. We need not decide whether the parties may, once they have agreed upon the payment of a principal sum in installments, later change the agreement to provide for the periodic payment of alimony. At least, if they do wish to undertake to change the tax consequences of the original agreement, they must do so clearly so that both the former husband and former wife are aware of what they are doing. In the absence of a clear manifestation of an intention to change the original arrangement so as to achieve different tax consequences, the parties should be required to continue to follow the original arrangement and to adhere to the tax consequences to which they had clearly agreed upon.

Deennen, Tannenwald, and Gofee, JJ., agree with this concurring opinion.

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