Joyce A. Perkins - Page 8




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               As explained below, we conclude that Dr. Perkins’s                     
          obligation under paragraph 14(f) of the MDA was an obligation to            
          pay alimony in futuro, which would not have survived petitioner’s           
          death.  Consequently, the $26,400 in disability benefits                    
          petitioner received in 2003 is taxable alimony under section 71.            
               Because the Tennessee courts have held that the definiteness           
          or indefiniteness of an award of alimony determines whether it is           
          alimony in solido or alimony in futuro, we begin by discussing              
          that issue.  Petitioner argues that Dr. Perkins’s obligation was            
          alimony in solido because “the amount is calculable when awarded            
          in that the amount to be paid to Petitioner can be calculated               
          based upon the date that Thornton Perkins became disabled.”                 
          Respondent argues that the award was alimony in futuro because it           
          was contingent on Dr. Perkins’s becoming disabled and because it            
          was for an uncertain amount.  We agree with respondent.                     
               When the parties entered into the MDA on July 1, 1998, Dr.             
          Perkins’s obligation under paragraph 14(f) would have arisen only           
          in the event that Dr. Perkins became disabled at some future                
          time.  Thus, Dr. Perkins’s very obligation to pay petitioner a              
          portion of his disability benefits, if he ever received any, not            
          to mention the amount of that obligation, was not fixed and                 
          definite.  By that standard, Dr. Perkins’s obligation under                 
          paragraph 14(f) constituted alimony in futuro under Tennessee               
          law.  See McKee v. McKee, 655 S.W.2d 164, 165 (Tenn. Ct. App.               







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