Neil Jerome Proctor - Page 8

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          upon the death of the payee spouse.  See Tax Reform Act of 1986,            
          Pub. L. 99-514, sec. 1843(b), 100 Stat. 2853.  Consequently,                
          section 71(b)(1)(D) is satisfied if the liability ceases upon the           
          death of the payee spouse by operation of law.  Cf. Notice 87-9,            
          1987-1 C.B. 421.                                                            
               The divorce decree provides that the retirement payments               
          were ordered pursuant to the USFSPA, which states that                      
               Payments from the disposable retired pay of a member                   
               pursuant to this section shall terminate in accordance                 
               with the terms of the applicable court order, but not                  
               later than the date of the death of the member or the                  
               date of the death of the spouse or former spouse to                    
               whom payments are being made, whichever occurs first.                  
          10 U.S.C. sec. 1408(d)(4) (2000).  Accordingly, the retirement              
          payments will terminate, by operation of law, on the date that              
          either petitioner or Ms. Holdman dies, whichever occurs first.2             
          Moreover, the USFSPA provides that “Notwithstanding any other               
          provision of law, this section does not create any right, title,            

               2 The USFSPA provides that a former spouse may serve upon              
          the Secretary of Uniformed Services the divorce decree ordering             
          payments pursuant to the USFSPA.  After receipt of such service,            
          the payments are made directly to the member’s spouse.  See 10              
          U.S.C. sec. 1408(d)(1).  While Ms. Holdman did not serve the                
          Secretary with a copy of the divorce decree or receive payments             
          directly from the Secretary, the payments were ordered “as                  
          authorized under the Uniformed Services Former Spouses’ Act”.               
          Prior to enactment of the USFSPA, former spouses had no right to            
          receive a portion of a member’s military retirement pay.  See               
          McCarty v. McCarty, 453 U.S. 210 (1981).  The USFSPA was enacted            
          to allow courts to award spouses and former spouses an interest             
          in a member’s military retirement pay.  See S. Rept. 97-502                 

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