Judith D. Lawton - Page 11




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          71(b)(1)(D).  As enacted by DEFRA, section 71(b)(1)(D), as one of           
          the requirements a cash payment must meet to be considered                  
          alimony, provides that the divorce or separation instrument must            
          state that there is no liability to make a payment after the                
          death of the payee spouse.  The latter requirement was altered 2            
          years later by the Tax Reform Act of 1986 (TRA), Pub. L. 99-514,            
          sec. 1843(b), 100 Stat. 2853.  As a result of the TRA, if the               
          other statutory requirements are met, even without language in              
          the instrument a payment may be alimony if State law terminates             
          the payor's liability at the death of the payee spouse.  See                
          Cunningham v. Commissioner, T.C. Memo. 1994-474.  If Congress had           
          intended that State law could fix the amount of child support               
          payments where such amounts are not fixed by the terms of the               
          divorce or separation instrument, it certainly could have made a            
          similar change in the wording of section 71(c)(1).  We conclude             
          from the absence of such a change that Congress did not intend              
          the interpretation that petitioner advocates.                               
          Federal Policy and Pennsylvania Court Rule                                  
               Under section 215, an individual taxpayer is allowed to                
          deduct amounts paid as "alimony or separate maintenance" as                 
          defined under section 71(b).  Alimony and separate maintenance              
          payments are includable in the gross income of the recipient                
          under section 71.                                                           







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