- 4 - there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse. If the payor is liable for any qualifying payment after the recipient’s death, none of the related payments required will be taxed as alimony. Sec. 1.71-1T(b), Q&A-13, Temporary Income Tax Regs., 49 Fed. Reg. 34456 (Aug. 31, 1984). Whether a postdeath obligation exists may be determined by the terms of the divorce or separation instrument or, if the instrument is silent on the matter, by State law. Morgan v. Commissioner, 309 U.S. 78, 80-81 (1940); see Kean v. Commissioner, 407 F.3d 186 (3d Cir. 2005), affg. T.C. Memo. 2003-163; Megibow v. Commissioner, T.C. Memo. 1998-455. The parties dispute whether the payments at issue meet the requirement of section 71(b)(1)(D). The parties are in agreement that the divorce decree does not provide any conditions for the termination of these payments. Respondent maintains that the payments received by petitioner are gross income under section 71(a) because the payments were for separate maintenance. Petitioner contends that the payments are not taxable because the divorce decree did not specifically state that the payments should terminate at the death of petitioner or her former spouse. In 1986, however, Congress amended section 71(b)(1)(D) specifically to remove the requirement that a divorce or separation instrument affirmatively state that liabilityPage: Previous 1 2 3 4 5 6 7 Next
Last modified: May 25, 2011