Hermine Leventhal - Page 29




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          are entirely “on behalf of” Hermine, notwithstanding Harvey’s                 
          part use of the marital home.                                                 
          Would Harvey’s Liability for the Payments Have Terminated With                
          Hermine’s Death?                                                              
               Under section 71(b)(1)(D), liability to make payments must               
          terminate on the death of the payee spouse for such payments to               
          qualify as “alimony or separate maintenance payments”.                        
          Respondent, citing section 1.71-T(b), Q&A-11, Temporary Income                
          Tax Regs., 49 Fed. Reg. 34456 (Aug. 31, 1984), argues that even               
          if we find a written separation agreement did exist, such an                  
          agreement is insufficient because it does not state that                      
          liability for payments terminates on the death of Hermine.12                  
          However, Congress amended section 71(b)(1)(D) in 1986, after the              
          promulgation of the temporary regulations, specifically to remove             
          the requirement that a divorce or separation instrument                       
          affirmatively state that liability terminates upon the death of               
          the payee spouse, effective for instruments executed after                    


               12 Sec. 1.71-1T(b), Q&A-11, Temporary Income Tax Regs., 49               
          Fed. Reg. 34456 (Aug. 31, 1984), states:                                      
                    Q-11.  What are the consequences if the divorce or                  
               separation instrument fails to state that there is no                    
               liability for any period after the death of the payee                    
               spouse to continue to make any payments which would                      
               otherwise qualify as alimony or separate maintenance                     
               payments?                                                                
                    A-11.  If the instrument fails to include such a                    
               statement, none of the payments, whether made before or                  
               after the death of the payee spouse, will qualify as                     
               alimony or separate maintenance payments.                                





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