Charles W. and Nancy T. Smith - Page 7

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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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