Margaret Carol Burns - Page 10

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          71(b)(1)(A)-(D) are satisfied.4  Given the MSA's integration                
          clause, respondent argues, unless the agreement is reformed by a            
          court of competent jurisdiction so that it designates that the              
          payments are not includible in gross income by petitioner and not           
          allowable as a deduction by Mr. Burns, section 71(a) applies and            
          the payments are income to petitioner.                                      
               We disagree with respondent that the payments satisfy the              
          section 71(b)(1)(D) requirement that there be no liability to               
          make any such payment for any period after the death of the payee           
          spouse.  See Okerson v. Commissioner, 123 T.C. 258, 265 (2004).             
          If the payor is liable for any payments after the payee spouse's            
          death, none of the payments required under the divorce instrument           
          are alimony.  Sec. 1.71-1T(b), Q&A-10, Temporary Income Tax                 
          Regs., 49 Fed. Reg. 34456 (Aug. 31, 1984).  Whether such a post-            
          death liability 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.5  Morgan v. Commissioner, 309              

               4 In a departure from pre-1984 law, sec. 71(b) does not                
          require:  (1) that deductible/includible alimony payments be                
          periodic in nature, (2) that the amount to be paid must be fixed            
          in the agreement, or (3) that the payments be intended for                  
          spousal maintenance and support.  Sec. 71(b) makes no distinction           
          between transfers of cash meant to provide support or cash                  
          transfers meant to divide marital assets, so long as the payments           
          meet the sec. 71(b) requirements.  See Estate of Goldman v.                 
          Commissioner, supra.                                                        
               5 Sec. 71, as amended by the Deficit Reduction Act of 1984,            
          Pub. L. 98-369, sec. 422(a), 99 Stat. 795, required that the                

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