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Assuming a “worst case scenario” (i.e., custodial
parent dies and custody is awarded to someone other
than the surviving spouse), we cannot believe that
California law would permit the surviving parent to
avoid any further support obligations. * * *
See also Hawley v. Commissioner, 94 Fed. Appx. 126 (3d Cir. 2004)
(citing the Pennsylvania equivalent of Cal. Fam. Code secs. 3900
and 3901 for the proposition that “[e]ven if the technical
obligation to make [unallocated support] payments under the order
to [Ms.] Gilbert would have ended upon her death, the obligation
to make substitute payments would have continued because Hawley
would still have been required to support his children”), affg.
Gilbert v. Commissioner, T.C. Memo. 2003-92.
Petitioner, on the other hand, urges us to reject Wells v.
Commissioner, supra. He argues, among other things, that “none of
the payments made by Petitioner can be considered ‘child support’
pursuant to either section 71(c)(1) or 71(c)(2) and, therefore,
the payments qualify as alimony under section 71(a).” That aspect
of petitioner’s argument underscores the incompatibility of the
expansive reading of section 71(b)(1)(D) in Wells and the narrow
reading of section 71(c)(1)’s predecessor in Commissioner v.
Lester, 366 U.S. 299 (1961). Under the worst case scenario
approach of Wells (which assumes that someone other than the payor
spouse would take custody of the children upon the payee spouse’s
death), the substitute payment clause of section 71(b)(1)(D) will
invariably render the child support element of unallocated support
nondeductible, solely on the basis of the payor’s general State
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