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Under section 71(b)(1)(D), if the payor is liable for any
payment after the recipient’s death, none of the 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.
Respondent argues that the payments comprising the $200,000
in dispute are clearly part of a division of property under the
settlement agreement. Petitioner relies on cases holding that
the characterization of payments in a decree as alimony or
property settlement is not controlling. See, e.g., Baker v.
Commissioner, T.C. Memo. 2000-164. She correctly states a
general rule, but the general rule does not aid her case.
Whether the payments satisfy section 71 and, in this case,
particularly section 71(b)(1)(D) is controlling. See, e.g.,
Johanson v. Commissioner, T.C. Memo. 2006-105; Berry v.
Commissioner, T.C. Memo. 2005-91.
In this case, the settlement agreement requires petitioner
to make the equalization payments until a fixed amount, $225,000,
is paid. In contrast to the spousal support awarded in the
agreement, the obligation to make the equalization payments would
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