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Both parties have called the Court’s attention to
Berry v. Commissioner, T.C. Memo. 2005-91, in which the Court
applied California law. The facts of Berry closely resemble the
facts in this case. In Berry, as in our case, the divorce decree
obligated the taxpayer to pay California family support to his
former spouse, and the taxpayer claimed an alimony deduction for
those payments. For the most part, the Commissioner’s denial of
the taxpayer’s alimony deduction in Berry was based upon the same
reasons advanced by respondent in denying the deduction here in
dispute, one of which was the taxpayer’s failure to establish
that California family support payments terminate upon the death
of the payee as required by section 71(b)(1)(D). After
comprehensive and careful analysis, in Berry we held that nothing
under California law, in and of itself, operated to deny the
payor spouse a deduction for amounts paid as family support.
Petitioner, of course, relies upon Berry to support his
claim to the alimony deduction here in dispute. Respondent
attempts to distinguish Berry on both factual and legal grounds;
however, the distinctions are not persuasive.
According to the stipulation of facts, petitioner and his
former spouse negotiated the terms that were ultimately included
in the divorce decree; presumably, the negotiated terms included
the amount of, and other conditions relating to, the family
support payments included in the divorce decree. The details of
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