Barbara Kahn-Langer - Page 9

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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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