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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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