Renee B. Simpson - Page 8




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          to examine what effects, if any, are made by operation of State             
          law.                                                                        
               If Congress had intended for us to look beyond the written             
          instrument, it would have amended section 71(c)(1) to so reflect.           
          Indeed, Congress has addressed the issue of whether alimony can             
          be determined through operation of law.  Section 71(b)(1)(D), as            
          originally enacted, provided that for a payment to be considered            
          alimony, the divorce instrument must state that there was no                
          liability to make a payment after the death of the payee spouse.4           
          This language was deleted in 1986, and section 71(b)(1)(D) now              
          provides that if the other requirements are met, 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 child support                
          payments be fixed by operation of law, it certainly could have              
          amended the language of section 71(c)(1) to accomplish this goal            
          much like it did with the language of section 71(b)(1)(D).                  
               We conclude, therefore, that because the court order does              
          not specifically fix a portion of the $718 monthly payment as               




               4See Deficit Reduction Act of 1984 (DEFRA), Pub. L. 98-369,            
          sec. 422(a), 98 Stat. 793, 795-796.  DEFRA also enacted sec.                
          71(c)(1) which required the divorce or separation instrument to             
          fix the amount of child support.  This provision was formerly               
          contained in sec. 71(b).                                                    




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