- 9 - 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.Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
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