R. Lawrence Smith, III - Page 5

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          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 somewhat                  






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