- 36 -
condition of section 71(b)(1)(D) be contained in the governing
instrument. See supra pp. 13-14. As we have previously observed
in that regard:
If Congress had intended that State law could fix the
amount of child support payments where such amounts are
not fixed by the terms of the divorce or separation
instrument, it certainly could have made a similar
change in the wording of section 71(c)(1). We conclude
from the absence of such a change that Congress did not
intend the interpretation that petitioner advocates.
* * *
Lawton v. Commissioner, T.C. Memo. 1999-243. As noted above, the
payee spouse taxpayer in that case argued (unsuccessfully) that
Pennsylvania’s child support guidelines operated to “fix” a
portion of an unallocated support obligation as child support
within the meaning of section 71(c)(1). We similarly conclude
that Congress did not intend the interpretation of section
71(b)(1)(D) suggested by the worst case scenario approach of Wells
v. Commissioner, T.C. Memo. 1998-2.
d. Conclusion
We reject the notion that one must assume a worst case
scenario (under which someone other than the payor spouse would
take custody of the children upon the death of the payee spouse)
in determining the applicability of the substitute payment clause
of section 71(b)(1)(D) to an unallocated support obligation.
Accordingly, we hold that a payor spouse’s general State law
obligation to support his or her children, without more, does not
cause any or all of that spouse’s unallocated support obligation
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