- 5 - whether "the payment was for a period which could not end after [the spouse's] death", rather than whether the liability could survive the death of the spouse. We do not agree. Section 71(b)(1)(D) states: "there is no liability to make any such payment for any period after the death" of the spouse. The operative phrase is "no liability to make any such payment" after the payee's death. In short, the question is whether the liability would survive the wife's death. See Ribera v. Commissioner, T.C. Memo. 1997-38, affd. without published opinion __ F.3d __ (9th Cir 1998). It may be that under Georgia law, which controls here, the liability for support or alimony payments would be extinguished by the payee's death, but the liability here was for attorney's fees. Petitioner points us to no authority, and we have discovered none, that such a debt would be extinguished by the wife's death. Cf. Heffron v. Commissioner, T.C. Memo. 1995-253, affd. without published opinion sub nom. Murley v. Commissioner, 104 F.3d 361 (6th Cir. 1996). We sustain respondent's disallowance of the deduction. Respondent also determined that petitioner was liable for an accuracy-related penalty under section 6662(a) based on the underpayment resulting from the claimed deduction. Section 6664(c)(1) provides, however, that no penalty shall be imposed if there was a reasonable cause for the underpayment and the taxpayer acted in good faith. Section 71(b) is a somewhatPage: Previous 1 2 3 4 5 6 Next
Last modified: May 25, 2011