Eleanor A. Burkes - Page 10

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          (presumably a residence) to Ms. Burkes and requiring her to pay             
          the mortgage, taxes, and insurance on the property.                         
               Accordingly, there is little room for doubt that the pattern           
          of judgment entries here designates those items that are alimony            
          and those that are part of the property settlement.  Having made            
          that distinction, we must consider whether, under Ohio law the              
          requirement to pay support alimony extends beyond the death of              
          the payee.  If it does not, then the attorney's fees payments               
          meet the requirements of section 71(b)(1)(D) and are deductible             
          by Mr. Burkes and includable by Ms. Burkes.  Under Ohio law there           
          is no liability to make alimony support payments for any period             
          after the death of the payee spouse.  See Ohio Rev. Code Ann.               
          sec. 3105.18(B) (Anderson 1996), and predecessor sections.                  
               Having decided that the $60,000 constitutes alimony within             
          the meaning of section 71, we must address Ms. Burkes' secondary            
          argument that she did not receive any of the $60,000 in                     
          attorney's fees until 1991.  In that regard, Mr. Burkes deducted            
          $55,636 as alimony, representing attorney's fees, for 1990 and              
          $4,364 for 1991.  Ms. Burkes reported neither of those amounts,             
          and respondent determined that Ms. Burkes should have included              
          the $55,636 for 1990 and $4,364 for 1991.  Ms. Burkes' position             
          is one of constructive receipt in that she argues that because              
          the attorney's fees were obtained by means of a judgment and                
          garnishment of Mr. Burkes' funds and were received late in 1990             





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