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(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...)
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