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Department. In light of these stipulations, we find disingenuous
Ms. Kean’s current claim not to have received payments from Mr.
Kean. Consequently, we find that the disputed payments satisfy
the requirements of section 71(b)(1)(A).
IV. Section 71(b)(1)(D)
The remaining dispute involves the requirements of section
71(b)(1)(D). These requirements are satisfied if Mr. Kean had
“no liability to make any such payment for any period after the
death of the payee spouse [Ms. Kean] and there * * * [was] no
liability to make any payment (in cash or property) as a
substitute for such payments after the death of the payee
spouse.” Sec. 71(b)(1)(D). If the payor is liable for even one
otherwise qualifying payment after the recipient’s death, none of
the related payments required before death will be alimony. Sec.
1.71-1T(b), Q&A-13, Temporary Income Tax Regs., 49 Fed. Reg.
34456 (Aug. 31, 1984). Whether such obligation exists may be
determined by the terms of the applicable instrument, or if the
instrument is silent on the matter, by looking to State law.
Morgan v. Commissioner, 309 U.S. 78, 80 (1940); Gilbert v.
Commissioner, T.C. Memo. 2003-92.
The orders issued by Judge Ross did not indicate whether the
disputed payments would terminate at Ms. Kean’s death. We agree
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