- 7 -
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
obligation.
New Jersey has a support statute authorizing courts to award
alimony (maintenance) or child support, either pending the
6(...continued)
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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