- 8 -
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originally enacted, provided that for a payment to be considered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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