Robert L. Tovar - Page 8

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          Commissioner, T.C. Memo. 2003-92, affd. sub nom. Hawley v.                  
          Commissioner, 94 Fed. Appx. 126 (3d Cir. 2004); Kean v.                     
          Commissioner, T.C. Memo. 2003-163.                                          
               The Court agrees with respondent that the payment at issue             
          is not alimony under section 71(b)(1)(D) because, under the terms           
          of the agreement and under Florida law, petitioner's obligation             
          to make the payment would have continued if Ms. Lima had died               
          prior to payment of the stock option proceeds.  In Canakaris v.             
          Canakaris, 382 So.2d 1197, 1201 (Fla. 1980), the Florida Supreme            
          Court stated:                                                               

                    Although the award of lump sum alimony is not dependent           
               upon a finding of a prior vested right, there does arise               
               upon the entry of a final judgment of a lump sum award a               
               vested right which is neither terminable upon a spouse's               
               remarriage or death nor subject to modification.  It may               
               consist of real or personal property, or may be a monetary             
               award payable in installments.  Jurisdiction may be                    
               expressly retained, however, to terminate lump sum alimony             
               installment payments upon a spouse's remarriage or death               
               when the parties agree to such a provision in a property               
               settlement agreement.  Further, jurisdiction may be retained           
               to enter periodic alimony if found necessary after such                
               termination of lump sum alimony installment payments. * * *            

          Not only did the agreement and the divorce decree fail to provide           
          that petitioner's obligation for payment of the stock option                
          proceeds would terminate upon the prior death of Ms. Lima, there            
          were also no reservations that would have allowed the parties               
          thereafter to incorporate such a condition upon petitioner's                







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