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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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