- 4 -
(B) the divorce or separation instrument does not
designate such payment as a payment which is not
includible in gross income under this section and not
allowable as a deduction under section 215,
(C) in the case of an individual legally separated
from his spouse under a decree of divorce or of
separate maintenance, the payee spouse and the payor
spouse are not members of the same household at the
time such payment is made, and
(D) 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.
The parties agree that petitioner satisfies the requirements
of subparagraphs (A) through (C). They frame the issue in terms
of subparagraph (D)--whether petitioner's liability to make the
payments to his former wife's attorneys would have been
extinguished if, prior to payment, his former wife had died.
While it seems somewhat peculiar to discuss payment of fees made
to a former spouse's attorneys for services in terms of alimony
or separate maintenance payments,2 section 71(b) does not
differentiate as to the reasons for the payment. Nonetheless, as
we shall see, the nature of the expense may have some bearing on
the resolution of the issue.
Petitioner does not dispute that the Superior Court's order
that he pay $25,000 created an enforceable liability. Petitioner
contends, however, that the focus of section 71(b)(1)(D) is
2 Cf. United States v. Gilmore, 372 U.S. 39 (1963).
Page: Previous 1 2 3 4 5 6 Next
Last modified: May 25, 2011