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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; Kean v. Commissioner, T.C.
Memo. 2003-163.
The Court agrees with respondent that the $32,000 payment at
issue is not alimony under section 71(b)(1)(D) because, under
Florida law, petitioner's obligation to make the payment would
have continued if his former spouse died prior to payment of the
$32,000. In Canakaris v. Canakaris, 382 So.2d 1197, 1200 (Fla.
1980), the Florida Supreme Court stated:
Although the award of lump sum alimony is not dependent
upon a finding of a prior vested right, there does arise
upon the entry of a final judgment of a lump sum award a
vested right which is neither terminable upon a spouse's
remarriage or death nor subject to modification. It may
consist of real or personal property, or may be a monetary
award payable in installments. Jurisdiction may be
expressly retained, however, to terminate lump sum alimony
installment payments upon a spouse's remarriage or death
when the parties agree to such a provision in a property
settlement agreement. Further, jurisdiction may be retained
to enter periodic alimony if found necessary after such
termination of lump sum alimony installment payments. * * *
Not only did the separation agreement and the divorce decree fail
to provide that petitioner's obligation for payment of the
$32,000 would cease upon the prior death of his former wife,
there were also no reservations in either of the documents that
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