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fails to meet the four enumerated criteria, that portion is not
alimony and is not deductible by petitioner.
Neither of the parties argues that the requirements of
subparagraphs (A), (B), and (C) of section 71(b)(1) have not been
satisfied. Their disagreement focuses on the provisions of
subparagraph (D). Petitioner contends that had Colleen died
before the end of the stream of payments, under Pennsylvania law
the liability to make the payments would have terminated.
Respondent contends that if Colleen had died prior to the end of
the payment stream, her estate would have had a valid claim to
the continued payments under Pennsylvania law. Therefore, we
must look to Pennsylvania law to determine whether petitioner's
liability for the payments called for under the addendum
terminates at the death of the payee spouse. Sampson v.
Commissioner, 81 T.C. 614, 618 (1983), affd. without published
opinion 829 F.2d 39 (6th Cir. 1987).
Pennsylvania Family Law
Section 71(b)(1)(D) requires that the payor spouse must not
be liable for any payments under the divorce or separation
instrument after the death of the payee spouse. Under Div. Pa.
Code sec. 508 (1989), the right to receive alimony pursuant to
the alimony and support provisions of the Divorce Code shall
cease upon the death of the payee party. Thus, if any of the
disputed payments are alimony under Pennsylvania law, that
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