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71(b)(1)(B) was not satisfied, respondent relies on paragraph 8
of the findings in the final judgment, which states:
In accordance with this Court's Order on Wife's Motion
for Clarification of Order on Temporary Support, the
determination of taxability of all payments made to the Wife
or made on behalf of the Wife was deferred until final
hearing. The Court hereby determines that all payments made
to the Wife in accordance with this Court's Temporary
Support Order is [sic] designated as non-taxable to her and
non-deductible by the Husband in accordance with Internal
Revenue Code Section 71(b)(1)(B).
The temporary support order referred to is dated June 22, 1992,
and orders petitioner to pay $2,000 per month to his spouse;
however, the order makes no provision for nor imposes liability
on petitioner for payment of attorney's fees. Thus, respondent's
reliance on the final judgment is misplaced. Neither the
paragraph respondent cites nor any other aspect of the final
judgment designates petitioner's payment of Ms. Seyler's
attorney's fees as a payment that is not includable in gross
income and not allowable as a deduction under section 215. Thus,
this provision of the final judgment does not support
respondent's contention.
In order for petitioner's payment to be deductible as
alimony, petitioner's obligation to pay Ms. Seyler’s attorney's
fees would have had to terminate in the event of her death. Sec.
71(b)(1)(D). This requirement may be met either by the terms of
the divorce decree or by operation of State law. Commissioner v.
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