- 7 - (A) such payment is received by (or on behalf of) a spouse under a divorce or separation instrument, (B) the divorce or separation instrument does not designate such payment as a payment which is not includable in gross income under this section and not allowable as a deduction under section 215, (C) in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and (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. In the instant case, the parties agree that the unallocated support payments meet the requirements subparagraphs (A), (B), and (C) of section 71(b)(1). The parties, however, dispute the application of subparagraph (D) of section 71(b)(1). If Mr. Hawley is obligated to make one or more substitute payments after the death of Ms. Gilbert, then none of the unallocated support payments will be considered alimony. See Gonzales v. Commissioner, supra; sec. 1.71-1T(b), Q&A-13, Temporary Income Tax Regs., 49 Fed. Reg. 34456 (Aug. 31, 1984).9 9Mr. Hawley contends that we should follow Simpson v. Commissioner, T.C. Memo. 1999-251 (Pa. case), and Lawton v. Commissioner, T.C. Memo. 1999-243 (Pa. case), which held that unallocated payments are considered alimony. However, those cases considered the application of sec. 71(c) and did not directly address the application of subpar. (D) of sec. 71(b)(1) (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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