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cash or property) as a substitute for
such payments after the death of the
payee spouse.
Both parties agree that petitioner’s payment to Mr. Dubin
satisfies the requirements set out in section 71(b)(1)(A), (B),
and (C). Payment was made in cash, made pursuant to a “divorce
or separation instrument” as described in section 71(b)(2)(C) and
corresponding regulations, see sec. 1.71-1(b)(3), Income Tax
Regs., and the payment was not ineligible for the section 71 and
215 deduction/inclusion scheme. At the time of payment,
petitioner and Ms. Devers were not members of the same household.
Further, petitioner appears to be in agreement that the
obligation for someone to pay Mr. Dubin his fees would have
survived Ms. Devers’ death when he writes on page 7 of his
Memorandum Brief: “Aaron Dubin would be required to collect any
accrued legal fees from the estate of Ms. Devers by operation of
Missouri statute.” The disagreement in this case is about
whether petitioner’s $5,000 payment satisfies section
71(b)(1)(D); i.e., whether petitioner’s own liability to pay
attorney’s fees as ordered by the PDL would have terminated in
the event of Ms. Devers’ death. See sec. 1.71-1T(b), Q&A-10,
Temporary Income Tax Regs., supra at 34456. Of course, an
inquiry of this kind necessitates exploring the fictional
question of whether or not an amount already paid would have
remained an amount to be paid had Ms. Devers predeceased
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