Estelle Kersh - Page 6

                                        - 5 -                                         
          payments, payable under the Divorce Judgment, are not alimony               
          because they will not terminate upon her death and that the 1995            
          and 1996 payments are, in effect, advancements on the pension               
          that would be payable to her when her former husband retired.               
               The Divorce Judgment, on which petitioner relies, was filed            
          on or about January 24, 1997, and does not apply to the payments            
          that she received pursuant to the Order in 1995 and 1996.                   
          Regardless, petitioner’s reliance on the Divorce Judgment is                
          misplaced because the Divorce Judgment delineates separate                  
          clauses for:  (1) Support and maintenance payments that terminate           
          upon Leonard Kersh’s retirement and (2) pension payments pursuant           
          to a Qualified Domestic Relations Order that commence upon                  
          Leonard Kersh’s retirement.  The Divorce Judgment specifically              
          provided that the “maintenance obligation shall terminate” upon             
          Leonard Kersh’s retirement, and, thus, it does not continue after           
          petitioner’s death.                                                         
               The Order is the relevant document during the years in                 
          issue.  The Order awards “temporary maintenance” payments, and,             
          pursuant to State law, the payments would have terminated upon              
          the death of either party.  See N.Y. Dom. Rel. Law sec. 236B1.a             
          (1995).  We conclude that the payments that petitioner received             
          in 1995 and 1996 pursuant to the Order are separate maintenance             
          payments and are gross income to petitioner under section 71(a).            

Page:  Previous  1  2  3  4  5  6  7  Next

Last modified: May 25, 2011