William Franklin Salzman II - Page 6




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          have terminated in the event of his former wife’s death.  If so,            
          the payments would have been “alimony”.  Because we think                   
          petitioner’s payments would not have terminated upon her death,             
          we agree with respondent that they are not alimony, for the                 
          reasons stated below.                                                       
               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 at 191.  The parties           
          dispute whether the payments at issue meet the requirements of              
          section 71(b)(1)(D).  They agree that the agreement and divorce             
          decree do not provide any conditions for the termination of the             
          payments.  Respondent maintains that the payments made by                   
          petitioner to his former wife are not deductible from his income            
          as alimony under section 215(a) because the obligation to make              
          the payments does not terminate at the death of either party                
          under Texas law.  Petitioner argues that the payments are                   
          deductible because he intended them to be alimony and because the           
          agreement reached with his former wife did not specifically state           







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