Johny Desauguste - Page 7

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          none of the related payments required before death will be                   
          alimony.  Sec. 1.71-1T(b), Q&A-13, Temporary Income Tax Regs., 49            
          Fed. Reg. 34456 (Aug. 31, 1984).  Whether such obligation exists             
          may be determined by the terms of the applicable instrument, or              
          if the instrument is silent on the matter, by looking to State               
          law.  Morgan v. Commissioner, 309 U.S. 78, 80 (1940); Kean v.                
          Commissioner, T.C. Memo. 2003-163; Gilbert v. Commissioner, T.C.             
          Memo. 2003-92, affd. sub nom. Hawley v. Commissioner, 94 Fed.                
          Appx. 126 (3d Cir. 2004).                                                    
               Respondent contends that petitioner’s payments to Mrs.                  
          Desauguste are not deductible as alimony because the language of             
          their separation agreement states that the agreement is binding              
          on the “heirs” of the agreement and, therefore, the payments                 
          would not be terminated upon Mrs. Desauguste’s death.                        
               In deciding whether the payments were alimony, the Court                
          examines the language of the June Agreement to ascertain whether             
          it contains a termination upon death condition, and, if it does              
          not, whether State law supplies such a condition.  Hoover v.                 
          Commissioner, 102 F.3d 842, 847 (6th Cir. 1996), affg. T.C. Memo.            
          1995-183; see Gonzales v. Commissioner, T.C. Memo. 1999-332; see             
          also Cunningham v. Commissioner, T.C. Memo. 1994-474.  State law             
          determines certain rights of the parties, and Federal law                    
          determines the Federal income tax consequences of those rights.              







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