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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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