Thomas Lettieri - Page 5




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                    (A) such payment is received by (or on behalf of)                 
               a spouse under a divorce or separation instrument,                     
                    (B) the divorce or separation instrument does not                 
               designate such payment as a payment which is not                       
               includible in gross income under this section and not                  
               allowable as a deduction under section 215,                            
                    (C) in the case of an individual legally separated                
               from his spouse under a decree of divorce or of                        
               separate maintenance, the payee spouse and the payor                   
               spouse are not members of the same household at the                    
               time such payment is made, and                                         
                    (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.                                             
               Under section 71(b)(1)(D), 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.                
          2005), affg. T.C. Memo. 2003-163.  Whether a postdeath obligation           
          exists may be determined by the terms of the divorce or                     
          separation instrument or, if the instrument is silent on the                
          matter, by State law.  Morgan v. Commissioner, 309 U.S. 78, 80-81           
          (1940); see also Kean v. Commissioner, supra.  The parties                  
          dispute whether the payments at issue meet the requirement of               
          section 71(b)(1)(D).  The parties are in agreement that the                 
          divorce decree does not provide any conditions for the                      
          termination of these payments.  Respondent maintains that the               
          payments made by petitioner to Von Bergen are not deductible from           







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