Sandra J. Wolf - Page 5

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               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.              
               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 liability                    

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