Thomas Lettieri - Page 6




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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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