Donald Tobkin - Page 8

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                    (D) there is no liability to make any such payment                
                    for any period after the death of the payee spouse and            
                    there is no liability to make any payment(in cash or              
                    property) as a substitute for such payments after the             
                    death of the payee spouse.                                        

               Thus, for our purposes here, if the divorce or separation              
          instrument provides that the payment by one spouse to or on                 
          behalf of the other spouse is not includable in the gross income            
          of the receiving spouse and is not allowable as a deduction to              
          the payor spouse, the payments do not constitute deductible                 
          alimony.  Sec. 71(b)(1)(B).  However, if the obligation of the              
          payor to make the payments terminates upon the death of the payee           
          spouse, and there is no obligation on the payor spouse to make              
          any substitute payments to the payee's estate, the payments by              
          the payor spouse would constitute alimony, and such payments                
          would be deductible under section 71(b)(1)(D).  Respondent                  
          contends that petitioner's payment of Ms. Seyler's attorney's               
          fees of $28,825 is not deductible under section 71(b)(1)(B) and             
          (D).                                                                        
               Section 71(b)(1)(B) thus requires that the divorce or                  
          separation instrument between petitioner and Ms. Seyler not                 
          designate petitioner's payment of Ms. Seyler's attorney's fees as           
          a payment that was not includable in gross income and not                   
          allowable as a deduction under section 215.  Burkes v.                      
          Commissioner, T.C. Memo. 1998-61.  In arguing that section                  






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