- 40 -
(Ct. App. 1975) (similar).
D. Conclusion--Deductibility of Family Support Payments
Given the lack of continuing payment liability and substitute
payment liability with respect to petitioner’s family support
obligation, the family support payments at issue satisfy the
requirements of section 71(b)(1)(D). Because the parties do not
dispute the applicability of section 71(b)(1)(A)-(C) to those
payments, and respondent does not argue any other grounds for
nondeductibility (e.g., section 71(c)(1)), petitioner is entitled
to deduct the entire amount of family support payments he made to
Carmen in 1999 ($49,808).31
E. Payments to Drs. Caffaro and Murphy
1. Procedural Issue
Petitioner’s petition did not include a claim that he is
30(...continued)
following the payee spouse’s putative death) should be treated
the same as hypothetical payments to a successor custodian. We
would reject any such expansive reading of sec. 71(b)(1)(D) for
the same reasons we reject the expansive reading suggested by
Wells v. Commissioner, T.C. Memo. 1998-2. See supra pp. 32-36.
31 We recognize that, if Carmen died, petitioner conceivably
could be liable to her estate for at least some portion of his
family support arrearage. If that were so, then the portion of
petitioner’s 1999 payments to Carmen constituting arrears
($3,824) arguably would fail to satisfy sec. 71(b)(1)(D).
However, under well-established caselaw involving pre-1984 sec.
71, payments of alimony arrearages retained the character of the
payments originally due. See, e.g., Olster v. Commissioner, 79
T.C. 456, 462 (1982), affd. 751 F.2d 1168 (11th Cir. 1985).
Absent any indication in the legislative history of the 1984 Act
that Congress intended to change that result, we believe the same
principle would apply under post-1984 sec. 71.
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