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decree of divorce, that cease after the death of the payee
spouse. Sec. 71(b).
Petitioner argues that, because the note obligates Leichter
to make payments beyond the death of petitioner, it is clear that
these payments were not alimony. Petitioner concludes,
therefore, that respondent's position was unreasonable.
Respondent contends that her position was reasonable under the
circumstances.
In this case, respondent acted reasonably in raising the
issue of whether the parties intended the payments to be alimony.
The fact that the attachment to the judgment of divorce did not
incorporate the promissory note by reference, coupled with
respondent's uncontested assertion that the original note was
unsigned, and that the parties had taken inconsistent positions
on their returns, reasonably led respondent to question the
nature of the payments.
Petitioner cites Cunningham v. Commissioner, T.C. Memo.
1994-474, and Stokes v. Commissioner, T.C. Memo. 1994-456, for
the proposition that payments made to a former spouse that extend
beyond the former spouse's death are not alimony payments, and,
thus, are not deductible under section 215. Section 71(b)(1)(D)
provides that an alimony payment is--
any payment in cash if * * * there is no liability to
make any such payment for any period after the death of
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.
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Last modified: May 25, 2011