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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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