- 31 -
agreement. See In re Riconda, 688 N.E.2d 248, 251 (N.Y. 1997)
(“Generally, the obligation to make maintenance payments
terminates upon the death of either party”); 2 Foster et al., Law
and the Family New York, sec. 12:57 (2d ed., 1988 & Supp. 1999);
4 New York Civil Practice: Matrimonial Actions, sec. 51.02[6]
(1998).13 Because there is nothing in the record to indicate
that Harvey had agreed or was otherwise obligated to make the
payments required by the June 1 letters after Hermine’s death,
the requirement of section 71(b)(1)(D) is satisfied.14
Conclusion
For the reasons discussed above, Harvey’s direct payments to
Hermine of $26,358.65 in 1990 and $25,012.55 in 1991 and the
stipulated “car payments” of $891.30 in 1990 and $3,623.49 in
1991 do not qualify as alimony or separate maintenance payments
13 Although we concluded in Megibow v. Commissioner, T.C.
Memo. 1998-455, that a payment liability at issue therein did not
automatically terminate on the death of the payee spouse under
New York law, the single payment at issue in that case had the
appearance of an equitable distribution, and the payor’s
liability would therefore not have terminated on the death of the
payee spouse.
14 Although in the event of Hermine’s death, Harvey might
remain contractually liable to third parties for some of these
payments (e.g., apartment rent, utility bills, etc.), any such
post mortem payments would no longer be received “on behalf of”
Hermine. Israel v. Commissioner, T.C. Memo. 1995-500; cf.
Cologne v. Commissioner, T.C. Memo. 1999-102 (fact that husband’s
liability for utility bills on shared second residence would
continue after wife’s death does not disqualify alimony deduction
under sec. 71(b)(1)(D) for utility payments attributable to
wife’s use).
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