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petitioner’s payment satisfies section 71(b)(1)(D); i.e., whether
petitioner’s liability to pay Mrs. Berry’s attorney’s fees would
terminate in the event of her death.
Although Federal law controls in determining petitioner’s
income tax liability in this case, State law is necessarily
implicated in the inquiry inasmuch as the nature of petitioner’s
liability for the payment of Mrs. Berry’s attorney’s fees depends
on Oklahoma law. See, e.g., Sampson v. Commissioner, 81 T.C.
614, 618 (1983), affd. without published opinion 829 F.2d 39 (6th
Cir. 1987), and cased cited therein. In Estate of Bosch v.
Commissioner, 387 U.S. 456, 465 (1967), the Supreme Court
addressed the means for determining State law, in the context of
a Federal tax case, stating:
the State’s highest court is the best authority on its
own law. If there be no decision by that court then
federal authorities must apply what they find to be the
state law after giving “proper regard” to relevant
rulings of other courts of the State. In this respect,
it may be said to be, in effect, sitting as a state
court. Bernhardt v. Polygraphic Co., 350 U.S. 198
(1956).
Petitioner contends that, under Oklahoma law, a divorce
proceeding terminates with the death of one of the spouses and
the court loses all jurisdiction over the matter. Relying on
this principle, petitioner contends that, because the August 28,
1996, order directing him to pay Mrs. Berry’s attorney’s fees was
only temporary, his liability to make such payments would have
terminated upon Mrs. Berry’s death, thereby bringing the payments
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