- 20 -
Cunningham v. Commissioner, supra (knowledge of payee spouse’s
counsel that payor spouse intended to deduct payments at issue
does not equate to knowledge that the payments were intended to
terminate on the payee spouse’s death).17 Accordingly, we
sustain respondent’s relevance objection and exclude from
evidence petitioner’s exhibits 5 and 12. See Fed. R. Evid.
104(b).
d. Conclusion
The divorce documents do not address the contingency of
Carmen’s death, and petitioner has not offered any competent
evidence of his and Carmen’s intent in that regard. We therefore
turn to California law in order to determine the effect of
Carmen’s death on petitioner’s family support obligation.
16(...continued)
that intent) can never be relevant to a determination of the
intended scope of the payor’s liability. For example, a State
court might find such evidence relevant in a suit by the payee’s
estate to enforce payment after the payee’s death.
17 In Cunningham v. Commissioner, T.C. Memo. 1994-474, we
considered the weight to be afforded extrinsic evidence of
intended tax consequences rather than the threshold issue of its
admissibility. Our observations therein are nonetheless
instructive:
If both parties * * * [wanted the payments to be
deductible] and had understood the applicable tax
requirements needed to make them deductible, we could
infer that they intended the agreement to satisfy those
requirements. Because neither Mark nor * * * [his
counsel] appears to have understood that new section 71
required the support payments to terminate in the event
of the death of Shirley, we are unable to infer that
they had considered that requirement when Mark signed
the settlement agreement. * * * [Emphasis added.]
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