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petitioner’s income as alimony under section 215(a) because the
obligation to make the payments does not terminate at the death
of either party under Georgia law. Petitioner contends that the
payments are deductible because he intended the payments to be
alimony and because the settlement agreement did not specifically
state that the payments do not terminate at the death of
petitioner or Von Bergen.
Although section 71(b)(1)(D), as it was enacted in 1984,
originally required that a divorce or separation instrument
affirmatively state that liability for payments terminate upon
the death of the payee spouse in order 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. Hoover v. Commissioner, 102 F.3d 842,
845-846 (6th Cir. 1996), affg. T.C. Memo. 1995-183.
Under Georgia law, the obligation to pay periodic alimony
terminates at the death of either party, while the obligation to
pay lump sum alimony in installments over a period of time does
not. Winokur v. Winokur, 365 S.E.2d 94, 95 (Ga. 1988). The
Georgia Supreme Court has held that the obligation to pay lump
sum alimony does not terminate upon the death of either party
because lump sum alimony is in the nature of a property
settlement, regardless of whether it is designated as alimony.
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