Scott W. Cosby - Page 8

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          (California and others) terminated upon the death of the payee              
          spouse.3  We see little point in a detailed discussion of those             
          cases, as their holdings present no clear direction as to how               
          this case should be resolved.  As in the prior cases, neither               
          party has called the Court’s attention to California law, whether           
          statutory or otherwise, that determinatively resolves the                   
          question.4                                                                  





               3 For example, respondent cites Murphy v. Commissioner,                
          T.C. Memo. 1996-258, in which the Court held that it would                  
          presume that the obligation to make the marital payments could              
          have survived the remarriage or death of the payee spouse and               
          that sec. 71(b)(1)(D) was not satisfied because there was                   
          insufficient evidence for the Court to conclude that these                  
          payments would not have survived the death of the payee spouse              
          before the children in her custody reached the age of majority.             
          Respondent cites Miller v. Commissioner, T.C. Memo. 1999-273,               
          affd. sub nom. Lovejoy v. Commissioner, 293 F.3d 1208 (10th Cir.            
          2002), in which the Court found that the parties intended the               
          payments to terminate not upon the death of the payee spouse, but           
          rather upon the happening of one or more specified events                   
          pertaining to their children and, consequently, held that the               
          payor spouse’s payments failed to meet the sec. 71(b)(1)(D)                 
          requirement.  Respondent cites cases applying Colorado law,                 
          Miller v. Commissioner, supra, New Jersey law, Gonzales v.                  
          Commissioner, T.C. Memo. 1999-332, and Pennsylvania law, Gilbert            
          v. Commissioner, T.C. Memo. 2003-92, affd. sub nom. Hawley v.               
          Commissioner, 94 Fed. Appx. 126 (3d Cir. 2004), for the                     
          proposition that payments of unallocated family support do not              
          satisfy the sec. 71(b)(1)(D) requirement and thus do not qualify            
          as deductible alimony.                                                      
               4 California law, of course, would control here.  See                  
          Morgan v. Commissioner, 309 U.S. 78, 80 (1940).                             




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