Michael K. Berry - Page 27

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          for the continuation of payments ostensibly terminating at that             
          time depends on all of the facts and circumstances).                        
                    2.   Okerson v. Commissioner                                      
              Our recent opinion in Okerson v. Commissioner, 123 T.C. 258             
         (2004), nicely illustrates the operation of the substitute                   
         payment clause of section 71(b)(1)(D).  The divorce decree in                
         that case required Mr. Okerson to pay Mrs. Okerson $117,000 “as              
         alimony necessary for her support” in varying installments over a            
         period of approximately 10 years.  Id. at 259-260.  Although the             
         decree specified that “[s]aid alimony” would terminate upon Mrs.             
         Okerson’s death, another provision obligated Mr. Okerson to pay              
         the remaining installments in that event “for or on behalf of the            
         education of the parties’ two children”.  Id. at 260.  A                     
         subsequent decree required Mr. Okerson to pay Mrs. Okerson’s                 
         attorney $33,500 on Mrs. Okerson’s behalf “as alimony necessary              
         for her support” over a period of 41 months.  Id.  That decree               
         similarly provided that “[s]aid alimony” would terminate upon                
         Mrs. Okerson’s death, in which case the remaining installments               
         would be payable directly to her attorney.  Id. at 260-261.  We              
         concluded that both postdeath obligations were substitute payment            
         liabilities, as contemplated in section 71(b)(1)(D), with respect            
         to the payments to Mrs. Okerson labeled as “alimony” and that,               
         consequently, the payments to Mrs. Okerson failed to qualify as              
         deductible alimony.  Id. at 267-268; see also sec. 1.71-1T(b),               
         Q&A-14, Examples (1) and (2), Temporary Income Tax Regs., supra.             





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