Cheryl J. Miller - Page 13




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          payment would survive her death.  We reject both of these                   
          arguments and the circular reasoning on which they rely.                    
               Unallocated family support is a technique sometimes used in            
          domestic relations cases to encourage sensible cash-flow planning           
          between separated spouses.7  If used correctly, the technique               
          enables the parties to achieve a higher net transfer of funds to            
          the payee spouse because the payor spouse, who is generally in a            
          higher tax bracket, reaps an economic benefit from the larger tax           
          deduction obtained when unallocated family support payments are             
          structured to be deductible as alimony.  See generally H. Rept.             
          98-432 (Part 2), at 1495 (1984).  These unallocated payments,               
          while typically temporary, can facilitate the economic transition           
          that must occur as a result of a divorce or separation, provided            
          the parties understand and agree to the tax consequences.                   
               In this case, the Temporary Orders are silent regarding the            
          tax consequences of the unallocated family support payments.                
          Although petitioners could have agreed to the tax consequences of           
          the payments, they failed to do so.  See sec. 71(b)(1)(B) and               
          (c).  Colorado's UDMA does not state expressly whether combined             
          spousal and child support payments must terminate on the death of           
          the payee spouse.  We must examine, therefore, whether the                  
          provisions of the UDMA applicable to temporary orders permit us             


               7This practice is sometimes referred to as "Lesterizing".              
          See Commissioner v. Lester, 366 U.S. 299 (1961).                            




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