Alan Robert Zinsmeister - Page 21




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         made on behalf of Betty–-specifically the attorney’s fees,                   
         miscellaneous expenses, mortgage payments, home insurance, and               
         real estate taxes–-lacked that label.  Respondent accordingly                
         urges that neither the pertinent State statutes nor the State                
         court’s orders provide that the payments in dispute would                    
         terminate on the death of the payee spouse.  Thus, respondent                
         concludes, these specific payments do not meet the requirement               
         imposed by section 71(b)(1)(D).                                              
              Respondent has placed too much emphasis on the State court’s            
         failure to describe the payments as "maintenance".  Respondent’s             
         argument overlooks consideration that, whatever they are called,             
         these payments (with the exception of the attorney’s fees) will              
         end with the death of the payee spouse.  They thus satisfy the               
         requirement to be treated as alimony contained in section                    
         71(b)(1)(D).                                                                 
              We recognize that, if Betty had died while the temporary                
         order was in effect, petitioner might have remained contractually            
         liable for some of the payments, such as those on the mortgage.              
         Such an event, however, would have transformed the portion of the            
         payments made "on behalf of" Betty into nondeductible personal               
         expenses of petitioner alone, pursuant to section 262.  Thus,                
         their status as alimony payments under section 71(b)(1) would                
         have terminated with Betty’s death.  See Israel v. Commissioner,             
         T.C. Memo. 1995-500; cf. Cologne v. Commissioner, T.C. Memo.                 






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