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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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