John R. and Patricia G. Okerson - Page 2

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               deductible as alimony.  In 2004, after P commenced this                
               proceeding challenging R’s disallowance of that                        
               deduction, the court restated in an order that it                      
               intended for Federal income tax purposes that all of                   
               the $117,000 and the $33,500 be alimony deductible by P                
               and includable in O’s income.  The court also stated in                
               this order that P had as of then paid both of these                    
               amounts to O, who was still alive.                                     
                    Held:  An alimony deduction for Federal income tax                
               purposes rests on fulfilling the requirements set forth                
               in sec. 71, I.R.C.  Sec. 71(b)(1)(D), I.R.C., provides                 
               that payments may qualify as alimony only if “there is                 
               no liability to make any such payment * * * as a                       
               substitute for such payments after the death of the                    
               payee spouse.”                                                         
                    Held, further, in accordance with sec. 1.71-1T(b),                
               Q&A-14, Temporary Income Tax Regs., 49 Fed. Reg. 34456                 
               (Aug. 31, 1984), the payments which P was liable to                    
               make upon O’s death are substitute payments under sec.                 
               71(b)(1)(D), I.R.C., in that those post death payments                 
               would begin as a result of O’s death and would                         
               substitute for a continuation of the payments which                    
               terminated on O’s death and which otherwise qualified                  
               as alimony.                                                            
                    Held, further, in accordance with sec. 1.71-1T(b),                
               Q&A-13, Temporary Income Tax Regs., supra, the fact                    
               that P was liable to make the substitute payments means                
               that P may not deduct any of the $21,600 as alimony for                
               Federal income tax purposes, even though the $21,600                   
               would have otherwise been deductible as such.                          


               Michael J. Stengel, for petitioners.                                   
               James L. May, Jr., for respondent.                                     















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