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agreement to the contrary shown by the contract or surrounding
circumstances. In Cardwell v. Sicola-Cardwell, 978 S.W.2d 722,
726 (Tex. App. 1998), the State court of appeals, holding that
contractual alimony agreements in Texas are governed by the law
of contracts, and generally survive the death of one of the
parties, stated:
Neither the historical treatment of alimony in Texas, nor
Texas case law, indicates that the general rules of
alimony--i.e., court-ordered spousal support--should
apply to contracts for spousal support, particularly
the rule that alimony presumptively terminates on the
obligor’s death. Cf. Hutchings, 406 S.W.2d at 421
(holding that agreement for periodic child support
payments is governed by law of contracts, and under
contract principles payments survive obligor’s death
absent agreement to contrary shown by provisions of
contract or surrounding circumstances).
While petitioner’s assertions are forthright and appealing,
unfortunately for him the Internal Revenue Code is specific in
its requirements, and by virtue of Texas State law his support
payments to his former wife in 2004 did not meet the requirement
outlined in section 71(b)(1)(D). Accordingly, we hold that
petitioner’s payments made to his wife in 2004 did not satisfy
all the conditions set forth in section 71 and thus are not
properly deductible as alimony for the taxable year in issue.
To reflect the foregoing,
Decision will be entered
for respondent.
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