Marie A. Gonzales - Page 7

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               Whether such an obligation exists may be determined by the              
          terms of the applicable instrument, or if the instrument is                  
          silent on the matter, by looking to State law.7  See Morgan v.               
          Commissioner, 309 U.S. 78, 80 (1940); Sampson v. Commissioner, 81            
          T.C. 614, 618 (1983), affd. without published opinion 829 F.2d 39            
          (6th Cir. 1987); Cunningham v. Commissioner, T.C. Memo. 1994-474.            
          The temporary order did not indicate whether the family support              
          payments would cease at petitioner's death; hence, we turn to New            
          Jersey law8 to ascertain whether it would imply a postdeath legal            
               New Jersey has a support statute authorizing courts to award            
          alimony (maintenance) or child support, either pending the                   

          Commissioner, 98 T.C. 141, 149 (1992); see also LeCroy Research              
          Sys. Corp. v. Commissioner, 751 F.2d 123, 127 (2d Cir. 1984),                
          revg. on other grounds T.C. Memo. 1984-145.                                  
               7As the Court in Mass v. Commissioner, 81 T.C. 112, 129                 
          (1983), recognized:                                                          
                    The characterization of payments under State law                   
               is not controlling of Federal income tax consequences.                  
               * * *  However, while the requirements of section 71(a)                 
               must be considered independently of State law determi-                  
               nation, the impact of State law is squarely felt in any                 
               analysis of whether payments are made in discharge of a                 
               legal obligation.  In other words, while * * * [State]                  
               law does not determine "Is this income?," it does                       
               determine "Is this a legal obligation?" * * *                           
               8The parties agree that, since the temporary order was                  
          issued by a New Jersey court having proper jurisdiction of the               
          divorce action, it is to be interpreted under New Jersey law.                
          See N.J. Stat. Ann. sec. 2A:34-8 (West 1987).                                

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