Gordon B. Cologne - Page 8




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               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.                                             
          California Family Code section 4337 (West 1994) provides:                   
          "Except as otherwise agreed by the parties in writing, the                  
          obligation of a party under an order for the support of the other           
          party terminates upon the death of either party or the remarriage           
          of the other party."                                                        
               The parties dispute whether the payments at issue meet the             
          requirement of section 71(b)(1)(D).  The parties agree that the             
          agreement does not provide any conditions for the termination of            
          these payments.  Respondent's position is that petitioner's                 
          obligations to pay Ms. Cologne's share of their 1993 income taxes           
          and for the utilities for the Wisconsin property survive her                
          death.  Petitioner argues that petitioner's liability for the               
          payments terminates at her death pursuant to California Family              
          Code section 4337.                                                          
               Federal and State Income Tax Payments                                  
               Because the income tax liabilities are joint and several, if           
          Ms. Cologne died, petitioner would remain liable for the full               
          amount of their taxes to the respective tax collectors.  See sec.           
          6013(d)(3).  Normally, however, petitioner would be entitled to             
          the right of contribution for Ms. Cologne's half of the taxes.              




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