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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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