- 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...)
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