William Robertson McSkimming III - Page 8

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          nevertheless continued to make payments of $400 per week in 2000.           
          If such payments were for alimony or maintenance, as petitioner             
          contends, his obligation to make such payments would have ended             
          either under New York law or under the terms of the oral                    
          stipulation.  His continuing to make payments after Ms.                     
          McSkimming’s remarriage and her physical custody of the children            
          are factors that militate in favor of characterizing such                   
          payments as for child support and not for alimony or separate               
          maintenance.4  We sustain respondent’s determination regarding              
          this issue.                                                                 
               Reviewed and adopted as the report of the Small Tax Case               
          Division.                                                                   
               To reflect the foregoing,                                              
                                                   Decision will be entered           
                                             for respondent.                          





               4  We realize that, of petitioner’s three children, Brian              
          was at least 21 years old during 2000 and that New York law                 
          defines child support as “a sum to be paid * * * for care,                  
          maintenance and education of any unemancipated child under the              
          age of twenty-one years.”  N.Y. Dom. Rel. Law secs. 236, 240                
          (McKinney 2003) (emphasis added).  However, under New York law,             
          petitioner would still have to make child support payments at the           
          full amount until he filed an application with a New York court             
          and received approval to modify such payment amount.  In any                
          event, even if they were alimony payments, they would be                    
          voluntary and as such would still not be deductible by                      
          petitioner.                                                                 





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