Michael K. Berry - Page 2

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                    The primary dispute between the parties is whether                
               P’s family support payments satisfy sec. 71(b)(1)(D),                  
               which provides that a cash payment meeting the                         
               requirements of sec. 71(b)(1)(A)-(C) is alimony only if                
               (1) there is no liability to make any such payment for                 
               any period after the death of the payee spouse                         
               (“continuing payment” liability) and (2) 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 (“substitute payment” liability).                         
                    Held: P had no continuing payment liability, as                   
               contemplated in sec. 71(b)(1)(D), with respect to the                  
               family support payments at issue.                                      
                    Held, further, a payor spouse’s general State law                 
               obligation to continue supporting his or her children                  
               in the event of the payee spouse’s death does not, in                  
               and of itself, give rise to a substitute payment                       
               liability, as contemplated in sec. 71(b)(1)(D), with                   
               respect to an unallocated support obligation such as                   
               California family support.                                             
                    Held, further, P had no substitute payment                        
               liability, as contemplated in sec. 71(b)(1)(D), with                   
               respect to the family support payments at issue.                       
                    Held, further, P is entitled to an alimony                        
               deduction for 1999 in the amount of $49,808, consisting                
               of the 12 monthly payments of $3,832 ($45,984) and the                 
               additional $3,824 payment attributable to his                          
               arrearage; P is not entitled to any alimony deduction                  
               for 1999 in respect of his payments to the court-                      
               appointed psychologists.                                               
                    Held, further, P is liable for the addition to tax                
               under sec. 6651(a)(1), I.R.C., for failure to file                     
               timely his 1999 return.                                                

               Gary M. Erickson, for petitioner.                                      
               James J. Posedel, for respondent.                                      









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