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(D) there is no liability to make
any such payment for any period after
the death of the payee spouse and there
is no liability to make any payment (in
cash or property) as a substitute for
such payments after the death of the
payee spouse.
Both parties agree that Mr. Garner’s payments to his ex-wife
satisfied the requirements set out in section 71(b)(1)(A), (B),
and (C). The parties do not agree, however, whether the
requirement to make payments would have terminated in the event
of the ex-wife’s death. See sec. 71(b)(1)(D).
Although section 71(b)(1)(D) originally required that a
divorce or separation instrument affirmatively state that
liability for payments terminate upon the death of the payee
spouse in order for the payments to be considered alimony, the
statute was retroactively amended in 1986 so that such payments
now qualify as alimony as long as termination of such liability
would occur upon the death of the payee spouse by operation of
State law.4 Hoover v. Commissioner, 102 F.3d 842, 845-846 (6th
Cir. 1996), affg. T.C. Memo. 1995-183. If the payor is liable
for any qualifying payment after the recipient’s death, none of
the related payments required will be deductible as alimony by
the payor. See Kean v. Commissioner, 407 F.3d 186, 191 (3d Cir.
4 Other amendments to sec. 71 also removed rules applicable
to deducting payments when the period for payments is more than
10 years. See Deficit Reduction Act of 1984, Pub. L. 98-369 sec.
422(a), 98 Stat. 795.
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Last modified: November 10, 2007