Leonard Salesky - Page 6

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                    (C) a decree (not described in subparagraph (A))                  
               requiring a spouse to make payments for the support or                 
               maintenance of the other spouse.                                       
          Characterization of Attorney’s Fees Payment                                 
               Petitioner argues that he is entitled to an alimony                    
          deduction for the $7,500 paid as attorney’s fees to Ms. Salesky’s           
          counsel because the payment satisfies the requirements of section           
          71.  Respondent concedes that while the payment does meet section           
          71(b)(1)(A) through (C), it fails to satisfy section 71(b)(1)(D)            
          because petitioner would have remained liable to pay the fees in            
          the event of Ms. Salesky’s death.                                           
               The order directing petitioner to pay Ms. Salesky’s                    
          attorney’s fees did not provide whether petitioner’s                        
          responsibility to make the payment would terminate in the event             
          of Ms. Salesky’s death.  When an order does not specify whether             
          an obligation to make such a payment would cease upon the death             
          of the payee spouse, the Court must turn to the applicable State            
          law to resolve whether the death of a payee spouse would                    
          terminate the obligation imposed by the order.  Kean v.                     
          Commissioner, 407 F.3d 186, 191 (3d Cir. 2005) (interpreting New            
          Jersey law and quoting I.R.S. Notice 87-9, 1987-1 C.B. 422 (“The            
          termination of liability need * * * not be expressly stated in              
          the instrument [if] * * * the termination would occur by                    
          operation of State law.”)), affg. T.C. Memo. 2003-163.                      







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