Lawrence Robert Gamer - Page 8

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          alimony terminates at the death of the payee spouse unless the              
          separation agreement or the divorce decree provides to the                  
          contrary.  Therefore, in 1986, Congress struck from section                 
          71(b)(1)(D) the parenthetical providing for alimony treatment               
          only if the divorce or separation instrument stated that there              
          was no liability on behalf of the payor spouse to make the                  
          payments after the death of the payee spouse.  See sec. 1843(b)             
          of the Tax Reform Act of 1986, Pub. L. 99-514, 100 Stat. 2853.              
          But even after the 1986 amendment, whether an obligation to make            
          payments survives the death of the payee spouse “may be                     
          determined by the terms of the applicable instrument, or if the             
          instrument is silent on the matter, by looking to State law.”               
          Kean v. Commissioner, T.C. Memo. 2003-163.                                  
               The issue before us is whether the $37,000 payment                     
          petitioner made to Ms. Gamer pursuant to the settlement agreement           
          was for her support, thus constituting alimony, or in the nature            
          of a property settlement and therefore not deductible from his              
          gross income.  Specifically, we must decide whether under the               


               3(...continued)                                                        
          98-369, 98 Stat. 795, sec. 71(b)(1)(D) provided as follows:                 
                    (D) there is no liability to make any such payment                
               for any period after the death of the payee spouse and                 
               there is no liability to make any payment (in cash or                  
               property) as a substitute for such payments after the                  
               death of the payee spouse (and the divorce or                          
               separation instrument states that there is no such                     
               liability).                                                            





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