- 7 - (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 sectionPage: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 Next
Last modified: May 25, 2011