- 6 - 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 thatPage: Previous 1 2 3 4 5 6 7 8 9 Next
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