- 9 - 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 (continued...)Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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