Zinsmeister v. Commissioner

T.C. Memo. 2000-364

UNITED STATES TAX COURT

ALAN ROBERT ZINSMEISTER, Petitioner v.
COMMISSIONER OF INTERNAL REVENUE, Respondent

Docket No. 10782-99. Filed November 30, 2000.

Alan Robert Zinsmeister, pro se.

Eric W. Johnson, for respondent.

MEMORANDUM FINDINGS OF FACT AND OPINION

PARR, Judge: Respondent determined deficiencies in

petitioner’s 1994, 1995, and 1996 Federal income taxes of $5,344,

$1,969, and $9,748, respectively.

The issue for decision is whether petitioner is entitled to

alimony deductions for his tax years 1994, 1995, and 1996 in

excess of those allowed by respondent. We hold that he is, to
 - 2 -

the extent set forth below. Unless otherwise indicated, all

section references are to the Internal Revenue Code in effect for

the taxable years in issue, and all Rule references are to the

Tax Court Rules of Practice and Procedure.

FINDINGS OF FACT

Some of the facts have been stipulated and are so found.

The stipulated facts and the accompanying exhibits are

incorporated herein by this reference. At the time

the petition in this case was filed, petitioner resided in

Rochester, Minnesota.

Petitioner and Betty J. Zinsmeister (Betty) were married in

1974. In 1986, they took out a mortgage (the first mortgage) on

their jointly owned residence in the principal amount of $77,900.

Petitioner and Betty were jointly liable on the first mortgage

note.

Betty initiated divorce proceedings against petitioner in

August 1991 and, in October, moved out of the residence. Two of

their three children moved with her, and the third remained with

petitioner.

On October 17, 1991, the District Court for the Third

Judicial District of Minnesota - Family Division (the State

court) issued a temporary order. Therein, under the heading

"Support of the Minor Children", the State court set petitioner’s

monthly child support obligation at $950. In addition,
 - 3 -

petitioner’s monthly spousal support obligation, labeled

"Maintenance", was set at $1,150.

In April 1992, petitioner and Betty executed a note and

mortgage for the principal amount of $50,000 (the second

mortgage). The second mortgage instrument was signed by the

petitioner and by Betty. The second mortgage note, however, was

signed solely by petitioner.1 In August, Betty and the two

children moved to Woodbury, Minnesota, so that Betty could

complete her education at the University of Minnesota.

In December 1992, Betty attempted to move back into the

family residence in Rochester. Petitioner obtained an ex parte

order awarding him temporary exclusive possession of the

residence. In February 1993, however, petitioner and Betty

agreed that Betty and all three children would move into the

residence and that petitioner would move out.

Betty filed a motion for temporary relief in June 1993. Her

affidavit submitted in support of the application for temporary

relief stated that the fair market value of the residence was

$123,000 and that the total principal of all outstanding

mortgages thereon was $100,000. In her motion she sought, among

other things, retroactive spousal maintenance and monthly child

support of $1,400, to be reduced to $1,200 when their oldest

1
Both the first and second mortgages replaced earlier loans
that had been secured by the residence. Those earlier
obligations are not involved in this case.
 - 4 -

child, Nicholas, graduated high school. She also sought payments

on the two mortgages and attached a list of miscellaneous

expenses to be incorporated in the order, as follows:

Automobile repair $100
(broken ground effects)
Automobile repair 400
(brakes and struts)
Automobile tires 400
Veterinarian 200
Rob’s broken trombone 140
House insurance 316
Automobile insurance 373
Real estate taxes 684
Federal taxes 556
Graduation expenses 100
1992 Income taxes 120
Melissa’s dental work 60
Contacts 120
Glasses 90
(needed for summer internship)
Safety shoes 115
(needed for summer internship)

In response to her motion, the State court issued a

temporary order, dated July 6, 1993. The order included the

following provisions:

1. Petitioner’s child support was set at $1,400 per month,

retroactive to January 29, 1993, and continuing through May 1993,

and then at a rate of $1,200 per month thereafter.

2. "Temporary maintenance" was continued at $1,150 per

month.

3. Betty was awarded exclusive temporary possession of the

residence.

4. Petitioner was ordered to "reimburse" Betty $2,414 for
 - 5 -

the miscellaneous expenses she requested, with the exception of

the taxes. The order listed each of those expenses, including

those for the broken trombone, dental work, and graduation.

5. Petitioner was ordered to make payments on the first and

second mortgages on the residence and to pay Betty for the real

estate taxes she had paid in 1993.

6. Petitioner was ordered to pay $4,000 of Betty’s

attorney’s fees.

As required by the temporary order, petitioner made the

monthly payments of $529.96 on the second mortgage for the months

between July and December 1993. Petitioner believed that Betty’s

return to the residence justified his making lower payments, and,

therefore, that he did not have to meet the other obligations of

the order. On December 20, 1993, the State court issued a

contempt order. The order provided, inter alia, that petitioner

"shall pay to * * * [Betty] on or before February 1st, 1994, the

sum of FIVE HUNDRED DOLLARS ($500) as and for her attorney fees

incurred in the hearing on this motion." The State court further

provided that Betty "shall have judgment entered in her favor

against * * * [petitioner] in the sum of FOURTEEN THOUSAND ONE

HUNDRED SEVENTY-THREE AND 62/100TH DOLLARS ($14,173.62),

representing arrearages, including attorney’s fees unpaid, as

heretofore set forth in this order."

In the memorandum that accompanied its order, the State
 - 6 -

court explained that the "arrearages" of $14,173.62 consisted of:

1. Past-due spousal maintenance/support payments of $2,550;

2. Reimbursement to Betty of three payments she had made on

the first mortgage, totaling $2,262.81;

3. Payments on the first mortgage for the prior months of

August, September, and October totaling $2,262.81;

4. Reimbursement to Betty for real estate taxes on the

residence of $684, which she had paid in May 1993;

5. Reimbursement to Betty of the miscellaneous expenses of

$2,414 that she had incurred; and

6. Betty’s attorney’s fees of $4,000.

The order further provided that if petitioner did not make the

payments ordered, he would be jailed for contempt. In January

1994, petitioner made a lump-sum payment to Betty of the amount

owing, a total of $14,673. This amount included the newly added

reimbursement of an additional $500 for attorney’s fees.

On March 18, 1994 the State court entered a "Judgment and

Decree", dissolving petitioner’s and Betty’s marriage. The

decree included the following provisions:

1. Petitioner’s monthly child support was set at $1,500

from April 1994 through June 1996 and $1,250 from July 1996

through June 1998;

2. Petitioner’s monthly payment of "spousal maintenance"

was set at $1,400;
 - 7 -

3. Betty was awarded the residence subject to a lien in

favor of petitioner in the amount of $42,000, with interest at

the rate of 6 percent per annum; and

4. Betty was ordered to make payments on the first

mortgage, and petitioner was ordered to make payments on the

second mortgage.

The decree stated: "Notwithstanding the foregoing, the

obligation for maintenance payments shall terminate upon the

death of the wife or upon her remarriage." The decree further

provided: "It is specifically understood and agreed that all

future maintenance payments to the wife shall be deductible by

the husband and taxable to the wife."

The decree continued with a description of Betty’s custody

rights, of petitioner’s visitation rights, and of his support

obligations for the three children. It specified that petitioner

was entitled to claim the children as exemptions for State and

Federal income tax purposes.

The family residence went to Betty subject to the lien of

$42,000 in favor of petitioner payable at the latest by July 1,

1996. The State court ordered that Betty "immediately seek to

re-finance the first mortgage for an amount sufficient to satisfy

the first mortgage and husband’s lien by seeking a 30 year

adjustable rate mortgage." An immediate refinancing did not

occur, however, and the decree’s provisions relating to the
 - 8 -

payment of the mortgages continued in effect.

Pursuant to the Judgment and Decree, petitioner made the

spousal maintenance payments from April 1994 through June 1996.

He made the second mortgage payments from April 1994 through

August 1996.

Betty graduated from the University of Minnesota and began

work in Newton Falls, New York. On July 17, 1996, the State

court entered an Amended Judgment and Decree. Therein

petitioner’s monthly child support payments were reduced from

$1,500 to $1,408.75 and his monthly spousal maintenance payments

to $500.

In August 1996, petitioner obtained an unsecured line of

credit to pay off the second mortgage. Later that month, Betty

sold the residence; petitioner received compensation for his

$42,000 lien from the proceeds; and Betty relocated to Canton,

New York. Petitioner continued to make the $500 spousal

maintenance payments at least through the end of 1996, the last

of the years at issue.

For Federal income tax purposes, petitioner used the filing

status "single" for each of the years at issue. In his Federal

income tax return for 1994, petitioner deducted $33,943 as

alimony paid. In the notice of deficiency, respondent allowed

$17,050 of the alimony deductions and disallowed the balance.

The amounts allowed included the court-ordered monthly
 - 9 -

maintenance payments of $900 for the first 3 months of 19942 and

the court-ordered maintenance payments of $1,400 for the last 9

months of 1994. Respondent also allowed petitioner to deduct the

$1,750 of past-due spousal support payments which he paid in

January 1994 pursuant to the court’s contempt order. The

disallowed alimony deductions for that year totaled $16,893 and

included the balance of the items that petitioner was required to

pay by the contempt order, consisting of the following:

1. Past-due first mortgage payments of $4,525,

2. Past-due second mortgage payments of $4,770,

3. Real Estate taxes on the residence of $684,

4. The miscellaneous expenses of $2,414, and

5. Betty’s accrued legal expenses of $4,500.

For his taxable year 1995, petitioner deducted, as alimony,

a total of $23,160. Of this amount, respondent allowed the

deduction of the court-ordered monthly maintenance payments of

$16,800. The $6,360 balance, which respondent disallowed,

represented the monthly payments on the second mortgage made by

petitioner during that year.

For the taxable year 1996, petitioner claimed alimony

deductions of $45,020. Respondent allowed $11,400, consisting of

2
In an appendix to his brief, petitioner has explained that
he did not deduct the full amount of $1,150 for the first 3
months of 1994 in order to reflect, partially, Betty’s payment on
the first mortgage for those months.
 - 10 -

the court-ordered maintenance payments of $1,400 per month for

the first 6 months of that year, plus the reduced amount of $500

per month for the last 6 months. The disallowed alimony,

totaling $33,619.68, consisted of petitioner’s 8 months of

payments on the second mortgage at $529.96, plus the $29,380

amount petitioner used to pay off the balance of the second

mortgage in August 1996.

OPINION

The issue in this case is whether certain payments made by

petitioner pursuant to the court orders and decrees in his

divorce proceeding are "alimony or separate maintenance payments"

as defined in section 71. If so, they are deductible by

petitioner in the year paid. See secs. 71(a), 215(a). Alimony

does not include any part of a payment which the terms of the

divorce instrument fix as a sum payable for the support of the

children of the payer spouse. See sec. 71(c).

Congress amended section 71 in the Deficit Reduction Act of

1984, Pub. L. 98-369, sec. 422(a), 98 Stat. 795. The

purpose behind the amendment was to define more precisely the

payments that would constitute alimony, deductible by the payor.

See H. Rept. 98-432 (part 2) at 1495 (1984), which provides:

The committee believes that a uniform Federal standard
should be set forth to determine what constitutes
alimony for Federal tax purposes. This will make it
easier for the Internal Revenue Service, the parties to
a divorce, and the courts to apply the rules to the
facts in any particular case * * *
 - 11 -

Section 71(b)(1), as amended, now defines "alimony or separate

maintenance payment" as:

any payment in cash if--

(A) such payment is received by (or on behalf of)
a spouse under a divorce or separation instrument,

(B) the divorce or separation instrument does not
designate such payment as a payment which is not
includible in gross income under this section and not
allowable as a deduction under section 215,

(C) in the case of an individual legally separated
from his spouse under a decree of divorce or of
separate maintenance, the payee spouse and the payor
spouse are not members of the same household at the
time such payment is made, and

(D) there is no liability to make any such payment
for any period after the death of the payee spouse and
there is no liability to make any payment (in cash or
property) as a substitute for such payments after the
death of the payee spouse.

In this case, there is no dispute that the payments at issue

satisfy subparagraphs (B) and (C) of section 71(b)(1). The

disputed issues are whether the payments at issue satisfy the

requirements of subparagraphs (A) and (D) of that section.

Qualification under subparagraph (A) centers on the question

of whether the payments at issue were "received by (or on behalf

of)" Betty. Petitioner insists that all the disputed payments

were made on Betty’s behalf. Respondent concedes that petitioner

made some of these payments on behalf of Betty, but he counters

that the bulk of the payments redounded to petitioner’s benefit,

and not to Betty’s.
 - 12 -

We agree with respondent. Initially, respondent correctly

concedes that, at least for 1994, many of the payments were made

on behalf of Betty. Petitioner’s payment of $4,500 of Betty’s

accrued attorney’s fees were clearly made to Betty and on her

behalf. See Hopkinson v. Commissioner, T.C. Memo. 1999-154.

Most of the $2,414 in reimbursed miscellaneous expenses were

paid to Betty and on her behalf. The language of section 71(c),

however, directs that some part of the miscellaneous payments are

nondeductible child support. The language of section 71(c) is

clear that for payments to be child support, the written divorce

instrument by its terms must fix a sum which is payable as child

support. We therefore hold that the $140 paid for Rob’s broken

trombone, the $100 for Nicholas’ graduation expenses, and the $60

for Melissa’s dental work meet the requirements of section 71(c).

By separately identifying those amounts, the State court’s order

for temporary support fixed those sums as child support under

section 71(c), and not alimony. Accordingly, under section

215(a), petitioner may not deduct those amounts.

Different considerations come into play regarding whether

petitioner’s payment of the mortgages and taxes in 1994 were on

Betty’s behalf. When a divorce court orders one spouse to make

payments on a mortgage for which both spouses are jointly liable,

a portion of such payments discharges the legal obligation of the

other spouse. In such circumstances the payee spouse has
 - 13 -

received income under the general principle of Old Colony Trust

Co. v. Commissioner, 279 U.S. 716 (1929) (payment by a third

party of a person’s legal obligation is taxable income to that

person). Accordingly, in such cases, one-half of the mortgage

payment is includable in the gross income of the payee spouse

and, to the extent it otherwise qualifies as alimony, it is

deductible by the payor spouse as alimony. See Taylor v.

Commissioner, 45 T.C. 120, 123-124 (1965); Simpson v.

Commissioner, T.C. Memo. 1999-251; Zampini v. Commissioner, T.C.

Memo. 1991-395; Rev. Rul. 67-420, 1967-2 C.B. 63; see also sec.

1.71-1T(b), Q&A-6, Temporary Income Tax Regs., 49 Fed. Reg. 34455

(Aug. 31, 1984).

Applying those principles here, we hold that petitioner may

deduct as alimony one-half the payments on the first mortgage

that he made in 1994 pursuant to the orders of the State court.

Petitioner’s reimbursement to Betty in 1994 of the 1993 real

estate taxes and home insurance premiums produces the same

result; one half of those amounts were for the benefit of Betty,

who, in 1993, held title jointly with petitioner. Those amounts

also constitute alimony paid by petitioner in 1994. See

Leventhal v. Commissioner, T.C. Memo. 2000-92.

The other payments at issue in 1994, 1995, and 1996 all

consist of petitioner’s court-ordered payments upon the second

mortgage. Petitioner alone was liable on the note securing the
 - 14 -

second mortgage. When petitioner made payments on the second

mortgage, the payments discharged petitioner’s liabilities, not

Betty’s.

Moreover, the evidence does not establish that petitioner’s

payments benefited Betty by increasing the amount she would

receive on a subsequent sale of the residence. The record does

not disclose the price at which Betty sold the residence. In

June 1993, however, Betty’s affidavit submitted in support of an

application for temporary relief stated that the fair market

value of the residence was $123,000 and that the total principal

of all outstanding mortgages thereon was $100,000. At trial,

petitioner indicated that Betty’s calculations were roughly

accurate. He suggested that the fair market value was perhaps

$130,000 and the total of the mortgages was $110,000. The equity

in the residence was at most approximately $30,000. Petitioner,

however, had a lien against the residence for $42,000. Taking

into account the amount of his lien and the lack of proof as to

the sales price of the residence, the record does not establish

how much, if any, proceeds from the sale would benefit Betty.

See Taylor v. Commissioner, supra at 123-124.

We conclude that petitioner’s payments on the second

mortgage are not payments of alimony under section 71(b)(1)(A),

nor are they deductible as such.

We therefore hold (as respondent in fact concedes) that much
 - 15 -

of the $14,673 lump-sum payment by petitioner in January 1994

pursuant to the contempt order was made for the benefit of Betty

under subparagraph (A) of section 71(b)(1). The payments for her

benefit include the attorney’s fees, most of the miscellaneous

expenses and one-half the first mortgage, home insurance and real

estate taxes paid.3

In holding that only some of the payments at issue were made

on behalf of Betty, we reject petitioner’s contention that he

paid all these amounts to Betty or on her behalf. Petitioner

contends that all the payments come within the broad statutory

definition of "maintenance" under Minnesota law.

"Maintenance" means an award made in a dissolution or
legal separation proceeding of payments from the future
income or earnings of one spouse for the support and
maintenance of the other. [Minn. Stat. sec. 518.54,
subd. 3 (West 1990 & Supp. 1999-2000).]

Petitioner places too much emphasis on the definition of the

word "maintenance" in the Minnesota statute. "Although the

property interests of divorcing parties are determined by state

law, federal law governs the federal income tax treatment of that

property." Hoover v. Commissioner, 102 F.3d 842, 845 (6th Cir.

3
Under our holding, some of the lump-sum payments–-
specifically those amounts representing one-half the payments on
the first mortgage, real estate taxes and insurance, plus all the
payments on the second mortgage–-were for petitioner’s benefit.
The fact that these latter amounts were "received by" Betty does
not convert them into alimony under sec. 71(b)(1)(A). In effect,
Betty had only advanced those sums, which petitioner ultimately
paid by reimbursing her.
 - 16 -

1996)(citing Green v. Commissioner, 855 F.2d 289, 292 (6th Cir.

1988)), affg. T.C. Memo. 1995-183. Accordingly, a State

statute’s definition of certain items as "maintenance" or

"alimony" does not control the Federal taxation of those items

when those items fail to satisfy the definition of alimony

contained in section 71(b)(1). See Hoover v. Commissioner,

supra; Baker v. Commissioner, T.C. Memo. 2000-164. Here, as we

have held, Federal law determines, for income tax purposes, the

amount of the payments that were paid on Betty’s behalf and thus

constitute alimony within the meaning of section 71(b)(1).

We also reaffirm our ruling at trial in which we rejected,

as irrelevant, evidence of the parties’ intent as to the nature

of the payments at issue. The statutory definition of alimony in

section 71(b)(1) does not include a consideration of the parties’

intent. The omission is deliberate. As the Court of Appeals for

the Sixth Circuit has noted, in amending section 71(b), Congress

sought to eliminate "subjective inquiries into intent and the

nature of payments that had plagued the courts in favor of a

simpler, more objective test". Hoover v. Commissioner, supra.4

Nor can we accept petitioner’s arguments specifically

addressed to the "alimony" status of his payments on the second

4
In this regard, petitioner’s reliance upon cases such as
Wells v. Commissioner, T.C. Memo. 1998-2, is misplaced. The
documents in this case do not present the type of inconsistencies
or ambiguities that permitted the introduction of extrinsic
evidence as to intent in Wells.
 - 17 -

mortgage. Petitioner argues that, pursuant to the divorce

decree, his payments on the second mortgage note were made on a

house he no longer owned. Thus, he concludes, his payments on

the second mortgage were made on Betty’s behalf. Petitioner’s

argument ignores his failure to establish that Betty would

benefit economically from his payments on the second mortgage.

See Taylor v. Commissioner, supra. Accordingly, those payments

would not be made on behalf of Betty and would not meet the

definition of alimony in section 71(b)(1).

We recognize that, if petitioner had not made the second

mortgage payments, the resulting foreclosure might have

interfered with Betty’s rent-free use of the house. This

possibility, however, does not transform petitioner’s

nondeductible payment on his personal debt into deductible

alimony. See Bradley v. Commissioner, 30 T.C. 701, 707 (1958);

cf. sec. 1.71-1T(b), Q&A-6, Temporary Income Tax Regs., 49 Fed.

Reg. 34455 (Aug. 31, 1984).

As we have held, some of the payments in issue--the

attorney’s fees, most of the miscellaneous expenses and one-half

the first mortgage, home insurance and real estate taxes–-were

payments on behalf of Betty and thus satisfy the requirements of

section 71(b)(1)(A).

As to these particular payments, however, respondent

contends that they fail to qualify as alimony on the additional
 - 18 -

ground that they do not satisfy the requirement that "there is no

liability to make any such payment for any period after the death

of the payee spouse". Sec. 71(b)(1)(D). Accordingly, respondent

concludes, these payments are not alimony. We agree with

respondent insofar as the attorney’s fees are concerned;

otherwise, we disagree.

In the Deficit Reduction Act of 1984, Congress imposed the

requirement that alimony payments must relate solely to periods

before the death of the payee. See section 71(b)(1)(D), as

amended by the Deficit Reduction Act of 1984, Pub. L. 98-369,

sec. 422(a), 98 Stat. 795. Under that Act, the provision that

alimony payments terminate with the payee’s death was required to

be set forth in the divorce or separation agreement. In 1986,

however, Congress removed the requirement that the termination-

at-death provision be specifically set forth in the divorce or

separation agreement. See Tax Reform Act of 1986, Pub. L. 99-

514, sec. 1843(b), 100 Stat. 2853. Thus, payments now qualify as

long as termination would occur automatically under State law.

In section 71(b)(1)(D), Congress recognized that payments

would operate to support and maintain the payee only if they

related to periods before her death, and that payments for

periods after her death obviously would not provide such support.

The relevant legislative history explains:

In order to prevent the deduction of amounts which
are in effect transfers of property unrelated to the
 - 19 -

support needs of the recipient, the bill provides that
a payment qualifies as alimony only if the payor (or
any person making a payment on behalf of the payor) has
no liability to make any such payment for any period
following the death of the payee spouse. [H. Rept. 98-
432 (part 2), at 1496 (1984).]

Under Minnesota law, temporary orders in a divorce

proceeding terminate when the underlying proceeding is

consummated by dismissal or otherwise. See Minn. Stat. 518.131,

subd. 5 (2000); Richardson v. Richardson, 15 N.W.2d 127 (Minn.

1944). Similarly, an order of civil contempt for failure to obey

an order pending a final divorce decree loses its "force and

life" with a judgment of dismissal. In re Fanning, 41 N.W. 1074

(Minn. 1889). Minnesota law also provides that a suit for a

divorce abates when either spouse has died. See Tikalsky v.

Tikalsky, 208 N.W. 180 (Minn. 1926).

Minnesota law, however, expressly provides that an award of

attorney’s fees, even if made in a temporary order, survives the

underlying action for a divorce. The relevant statute provides:

An award of attorney’s fees made by the court during
the pendency of the proceeding or in the final judgment
survives the proceeding and if not paid by the party
directed to pay the same may be enforced as above
provided or by a separate civil action brought in the
attorney’s own name. If the proceeding is dismissed or
abandoned prior to determination and award of
attorney’s fees, the court may nevertheless award
attorney’s fees upon the attorney’s motion. The award
shall also survive the proceeding and may be enforced
in the same manner as last above provided. [Minn. Stat.
sec. 518.14 subd. 1 (West 1990 & Supp. 1999-2000).]

Here, the payments which remain at issue were all originally
 - 20 -

ordered to be paid in the temporary order of June 1993 and again

in the contempt order of December 1993. With the exception of

the attorney‘s fees, Minnesota law provides that the effect of

such orders would have ended with Betty’s death, which would have

terminated her divorce action. It follows that, as to those

payments, petitioner had no liability for any period following

the death of the payee. Therefore, those payments other than the

attorney’s fees constitute alimony under section 71(b)(1)(D).

Respondent’s arguments to the contrary are misplaced.

Initially, respondent correctly acknowledges that, under

Minnesota law, the obligation to pay "maintenance" terminates

with the death of the payee spouse. See Minn. Stat. sec. 518.64,

subd. 3 (West 1990 & Supp. 1999-2000):

Unless otherwise agreed in writing or expressly
provided in the decree, the obligation to pay future
maintenance is terminated upon the death of either
party or the remarriage of the party receiving
maintenance.

In the notice of deficiency, respondent has accordingly allowed,

as alimony deductions, the regular periodic payments of spousal

support that the State court specifically identified as

"maintenance".

Respondent also points out, however, that when the Minnesota

court ordered the payment of arrearages, it failed to designate

some of them as "maintenance" or to specify that they would end

with Betty’s death. Many of the payments that we have found were
 - 21 -

made on behalf of Betty–-specifically the attorney’s fees,

miscellaneous expenses, mortgage payments, home insurance, and

real estate taxes–-lacked that label. Respondent accordingly

urges that neither the pertinent State statutes nor the State

court’s orders provide that the payments in dispute would

terminate on the death of the payee spouse. Thus, respondent

concludes, these specific payments do not meet the requirement

imposed by section 71(b)(1)(D).

Respondent has placed too much emphasis on the State court’s

failure to describe the payments as "maintenance". Respondent’s

argument overlooks consideration that, whatever they are called,

these payments (with the exception of the attorney’s fees) will

end with the death of the payee spouse. They thus satisfy the

requirement to be treated as alimony contained in section

71(b)(1)(D).

We recognize that, if Betty had died while the temporary

order was in effect, petitioner might have remained contractually

liable for some of the payments, such as those on the mortgage.

Such an event, however, would have transformed the portion of the

payments made "on behalf of" Betty into nondeductible personal

expenses of petitioner alone, pursuant to section 262. Thus,

their status as alimony payments under section 71(b)(1) would

have terminated with Betty’s death. See Israel v. Commissioner,

T.C. Memo. 1995-500; cf. Cologne v. Commissioner, T.C. Memo.
 - 22 -

1999-102.

We therefore conclude that some of the payments at issue

meet the requirements of alimony under section 71(b)(1) and

qualify as deductions under section 215. These payments total

$4,560.81; they consist of $2,262.81 (one-half of 6 months’ first

mortgage payments), plus $342 (one-half of the 1993 real estate

taxes), plus $1,957 (reimbursed miscellaneous expenses for

spousal maintenance, less specified items of child support and

one-half the home insurance payment).

To reflect the foregoing,

Decision will be entered

under Rule 155.