Scott W. Cosby - Page 9

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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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