Scott W. Cosby - Page 10

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          those negotiations, however, have not been made part of the                 
          record.  As in Berry, we are left to resolve the issue concerning           
          the payor spouse’s postdeath liability for purposes of section              
          71(b)(1)(D) by relying solely upon the terms expressly included             
          in the divorce decree.  Applying California law to those terms,             
          we reach the same conclusion that we did in Berry, that                     
          respondent’s termination argument must be rejected.5                        
               Lastly, we address respondent’s inclusion argument.                    
          According to respondent, petitioner is not entitled to an alimony           
          deduction for the family support payments because his former                
          spouse did not include those payments in her income.  If a                  
          payment meets the definition of “alimony” set forth in section              
          71(b)(1), then it is includable in the payee spouse’s income.               
          Secs. 61(a)(8), 71(a).  If the payment is includable as alimony             
          in the payee spouse’s income, then it is allowed as an alimony              
          deduction to the payor spouse.  Sec. 215(a).  Whether the payee             
          actually includes the amount in income, although possibly                   
          relevant, is hardly determinative as to whether the payor spouse            
          may deduct the payment.  The fact that petitioner’s former spouse           
          did not include the family support payments neither establishes             
          that the payments are not includable in her income nor defeats              



               5 We could repeat the reasoning of Berry here, but we doubt            
          that we could improve upon it.                                              



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