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the requirement of section 71(b)(1)(D) has not been satisfied
because the settlement agreement and the divorce decree are
silent with respect to the obligation of petitioner to pay the
$32,000 in the event of the prior death of his former spouse.
Respondent further argues that, under Florida law, petitioner's
obligation to make the $32,000 payment would have continued in
the event of the prior death of petitioner's former spouse;
therefore, under the facts and the State law of Florida, the
payment does not satisfy section 71(b)(1)(D). Petitioners
contend that, under Florida law, the prior death of the former
spouse would have terminated petitioner's obligation to pay the
$32,000; therefore, section 71(b)(1)(D) was satisfied.3
As noted above, the settlement agreement and the divorce
decree are silent with respect to petitioner's obligation to pay
the $32,000 in the event his former spouse died before the
payment was made. Section 71(b)(1)(D) requires, as a condition
to qualify as alimony, that the obligation to pay terminates upon
the death of the former spouse. If the payer 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
3 Respondent does not contend that the $32,000
represented a division of property between petitioner and his
former spouse, in which event, the payment would not constitute
alimony.
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Last modified: May 25, 2011