                      123 T.C. No. 14



                UNITED STATES TAX COURT



    JOHN R. AND PATRICIA G. OKERSON, Petitioners v.
     COMMISSIONER OF INTERNAL REVENUE, Respondent



Docket No. 7702-03.              Filed September 9, 2004.



     In 1995, a State court (court) decreed that P pay
to O in connection with their divorce 113 monthly
payments of alimony totaling $117,000. The 1995 decree
stated that this alimony would terminate if O died
before the $117,000 was paid in full but that P would
then be required to continue making the monthly
payments towards the education of P and O’s children
until the children completed 4 years of college. In
1997, the court decreed that P make 42 additional
monthly payments totaling $33,500 to O’s attorney as
additional alimony to O and that this additional
alimony was deductible by P and taxable income to O.
The 1997 decree also stated that this additional
alimony would terminate if O died before the $33,500
was paid in full but that P would then be required to
continue making the monthly payments to O’s attorney
until the $33,500 was paid in full. During 2000, P
paid $12,600 pursuant to the 1995 decree and $9,000
pursuant to the 1997 decree and claimed on his 2000
Federal income tax return that the total of $21,600 was
                         - 2 -

deductible as alimony. In 2004, after P commenced this
proceeding challenging R’s disallowance of that
deduction, the court restated in an order that it
intended for Federal income tax purposes that all of
the $117,000 and the $33,500 be alimony deductible by P
and includable in O’s income. The court also stated in
this order that P had as of then paid both of these
amounts to O, who was still alive.
     Held: An alimony deduction for Federal income tax
purposes rests on fulfilling the requirements set forth
in sec. 71, I.R.C. Sec. 71(b)(1)(D), I.R.C., provides
that payments may qualify as alimony only if “there is
no liability to make any such payment * * * as a
substitute for such payments after the death of the
payee spouse.”
     Held, further, in accordance with sec. 1.71-1T(b),
Q&A-14, Temporary Income Tax Regs., 49 Fed. Reg. 34456
(Aug. 31, 1984), the payments which P was liable to
make upon O’s death are substitute payments under sec.
71(b)(1)(D), I.R.C., in that those post death payments
would begin as a result of O’s death and would
substitute for a continuation of the payments which
terminated on O’s death and which otherwise qualified
as alimony.
     Held, further, in accordance with sec. 1.71-1T(b),
Q&A-13, Temporary Income Tax Regs., supra, the fact
that P was liable to make the substitute payments means
that P may not deduct any of the $21,600 as alimony for
Federal income tax purposes, even though the $21,600
would have otherwise been deductible as such.



Michael J. Stengel, for petitioners.

James L. May, Jr., for respondent.
                                     - 3 -

                                  OPINION


       LARO, Judge:     This case is before the Court for decision

without trial.      See Rule 122.1    Petitioners petitioned the Court

to redetermine a $7,031 deficiency in their 2000 Federal income

tax.       We decide as to that year whether petitioners may deduct as

alimony $21,600 that John R. Okerson (petitioner) paid pursuant

to his divorce from his former wife, Barbara Buhr Okerson

(Okerson).       We hold that petitioners may not deduct any of that

amount.

                                Background

       The facts in this background section are obtained from the

parties’ stipulation of facts and the exhibits submitted

therewith.       Petitioners resided in Memphis, Tennessee, when their

petition was filed.       Petitioner and his former wife, Okerson,

have two children who were born on February 10, 1978, and

April 3, 1983, respectively.

       On August 31, 1994, a Tennessee State court (State court)

issued an order awarding Okerson a divorce from petitioner.        On

March 13, 1995, the State court entered a supplemental final

decree of divorce (1995 decree) that in relevant part ordered,

adjudged, and decreed as follows:



       1
       Rule references are to the Tax Court Rules of Practice and
Procedure. Unless otherwise stated, section references are to
the applicable versions of the Internal Revenue Code.
                         - 4 -

     4. JOHN RUSSELL OKERSON shall pay to BARBARA BUHR
OKERSON One Hundred Seventeen Thousand ($117,000)
Dollars as alimony necessary for her support as
follows: Six Hundred Fifty ($650.00) Dollars per month
for twenty-one (21) months beginning September, 1994
through May, 1996; One Thousand Two Hundred Fifty
($1,250.00) Dollars per month for three months
beginning June, 1996, through August, 1996; One
Thousand Six Hundred ($1,600.00) Dollars per month for
a period of thirty-six (36) months beginning September,
1996, through August, 1999; One Thousand Fifty
($1,050.00) Dollars per month for a period of thirty-
six (36) months beginning September, 1999, through
August, 2002; and Two Hundred Fifty ($250.00) Dollars
per month for a period of sixteen months beginning
September, 2002, through December, 2003; and the final
payment of Two Hundred ($200.00) Dollars to be made in
January, 2004. Said payments shall be payable in two
equal monthly payments on the 16th and 30th day of each
month. Said alimony shall terminate upon the death but
not the remarriage of either JOHN RUSSELL OKERSON or
BARBARA BUHR OKERSON and shall be modifiable only upon
the showing of a substantial change in circumstances
which was not contemplated by this Court at the time of
the trial as set forth in the premises hereinabove.

     5. In the event that BARBARA BUHR OKERSON should
die before JOHN RUSSELL OKERSON has satisfied his
alimony obligation under this agreement, JOHN RUSSELL
OKERSON agrees to make payments in an amount equal to
his remaining alimony obligation for or on behalf of
the education of the parties’ two children for a period
no longer than the period originally scheduled for the
alimony payments or until the children have completed
four years of undergraduate collegiate work, whichever
occurs first. In the event that a child does not
pursue her college education after BARBARA BUHR
OKERSON’s demise then JOHN RUSSELL OKERSON’s agreement
for continuing support payments to that child equal to
half of the remaining alimony payments shall cease.

     6. JOHN RUSSELL OKERSON shall pay to Larry Rice,
Attorney, as alimony necessary for BARBARA BUHR
OKERSON’s support, the sum of Twelve Thousand Four
Hundred Forty ($12,440.00) Dollars. Five Thousand
($5,000.00) Dollars of said funds shall be paid to
Larry Rice within sixty (60) days of September 7, 1994,
and the remaining Seven Thousand Four Hundred Forty
                               - 5 -

     ($7,440.00) Dollars shall be paid to Larry Rice within
     ninety (90) days from September 7, 1994.

     On October 2, 1997, the State court, upon remand of the case

from a State appellate court, see Okerson v. Okerson,

No. 02A01-9507-CV-00147 (Tenn Ct. App., Mar. 27, 1997), entered

an order (1997 decree) that decreed as follows:

          1. John Russell Okerson shall pay to Larry Rice,
     attorney for the Defendant [Barbara Buhr Okerson], for
     the benefit of Barbara Buhr Okerson, Thirty Three
     Thousand Five Hundred ($33,500.00) Dollars as alimony
     necessary for her support as follows:   Immediate
     payment of Seven Thousand Five Hundred ($7,500.00)
     Dollars; Seven Hundred Fifty ($750.00) Dollars per
     month for forty-one (41) months beginning October 1997,
     with the final payment February 2001. Said alimony is
     taxable to the Defendant and deductible by the
     Plaintiff [petitioner] and shall terminate upon the
     death but not the remarriage of Barbara Buhr Okerson.

          2. In the event that Barbara Buhr Okerson should
     die before John Russell Okerson has satisfied his
     alimony obligation under this agreement, John Russell
     Okerson agrees and is hereby ordered to make payments
     in an amount equal to his remaining alimony obligation
     to Larry Rice, attorney for the Defendant, for a period
     no longer than the period originally scheduled for the
     alimony payments or until an amount equal to his
     remaining alimony obligation (appellate attorney fees
     and expenses) has been satisfied.

     During 2000, petitioner paid $12,600 pursuant to the 1995

decree and $9,000 pursuant to the 1997 decree.    On their joint

2000 Federal income tax return, petitioners claimed an alimony

deduction for the total amount of $21,600.   Respondent disallowed

that deduction in a notice of deficiency issued to petitioners on

April 10, 2003.   On May 23, 2003, petitioners petitioned this

Court to redetermine that disallowance.
                               - 6 -

     On February 5, 2004, petitioner moved the State court to

modify its final decree of divorce for alimony and attorney’s

fees.   On March 29, 2004, the State court issued with respect to

that motion an order stating as follows:

          This cause came on to be heard, on March 19, 2004
     upon Petition to Modify Final Decree of Divorce for
     Alimony and Attorney’s Fees, filed February 05, 2004,
     by John Russell Okerson, through his Attorney,
     Charles A. Sevier. Upon Answer of Barbara Buhr Okerson
     to said Petition to Modify Final Decree of Divorce for
     Alimony and Attorney’s Fees, personal service upon
     Barbara Buhr Okerson by certified mail, return receipt
     requested, argument of Counsel for John Russell
     Okerson, Charles A. Sevier, argument of Counsel for
     Barbara Buhr Okerson, Laura D. Rogers; upon Memorandum
     of Law in opposition to Petition to Modify Final Decree
     of Divorce for Alimony and attorney Fees; from all of
     which it appears to the Court as follows:

          1.   That on March 13, 1995, Judge Wyeth Chandler,
     Judge of Division I of the Circuit Court of Shelby
     County, Tennessee, entered a Supplemental Final Decree
     of Divorce in this Cause in which John Russell Okerson
     was ordered to pay certain sums of alimony to Barbara
     Buhr Okerson, including attorney fees to Larry Rice, as
     her attorney, as alimony necessary for Barbara Buhr
     Okerson’s support, said sums totaling One Hundred
     Twenty Nine Thousand Four Hundred Forty ($129,440.00)
     Dollars, payable in installments;

          2.   That it was announced to the Court by
     Counsels for John Russell Okerson and Barbara Buhr
     Okerson that said amounts have been paid in full;

          3.   That John Russell Okerson by his attorney,
     states that in the trial transcript of this Cause held
     before the Honorable Wyeth Chandler, the Court clearly
     stated more than one time that the Court intended all
     ordered alimony to be tax deductible to John Russell
     Okerson and taxable income to Barbara Buhr Okerson;

          4.   It was announced to the Court that, despite
     said intention of the Court paragraph five (5) of the
                         - 7 -

Supplemental Final Decree of Divorce, entered March 13,
1995, contained language as follows:

          “5.   In the event BARBARA BUHR OKERSON
     should die before JOHN RUSSELL OKERSON has
     satisfied his alimony obligation under this
     agreement, JOHN RUSSELL OKERSON agrees to
     make payments in an amount equal to his
     remaining alimony obligation for or on behalf
     of the education of the parties’ two children
     for a period no longer than the period
     originally scheduled for the alimony payments
     or until the children have completed four
     years of undergraduate collegiate work,
     whichever occurs first. In the event that a
     child does not pursue her college education
     after BARBARA BUHR OKERSON*s demise then JOHN
     RUSSELL OKERSON*s agreement for continuing
     support payments to that child equal to half
     of the remaining alimony payments shall
     cease.”

     5.   It was announced to the Court that said
paragraph quoted above has been construed by the
Internal Revenue Service to question the intent of the
Court in the entry of the Supplemental Final Decree of
Divorce, entered March 13, 1995, that all alimony and
attorney fees paid to Larry Rice, Esq., be tax
deductible to John Russell Okerson and taxable income
to Barbara Buhr Okerson.

     6.   It further appeared to the Court that said
paragraph five (5) quoted above contains language of
contingency that did not occur and that therefore this
Court should find as fact in this Cause that all of
such alimony paid under the Supplemental Final Decree
of Divorce in this Cause should be tax deductible to
John Russell Okerson and taxable income to Barbara Buhr
Okerson.

     7.   It further appeared to the Court that in the
Order on Motion for Appellate Attorney*s Fees, entered
October 02, 1997, in which John Russell Okerson was
ordered to pay Larry Rice, then Attorney for Barbara
Buhr Okerson, Thirty-Three Thousand Five Hundred
($33,500.00) Dollars in installments for appellate
attorney fees, that said Order stated “Said alimony is
taxable to the Defendant and deductible by the
                         - 8 -

Plaintiff and shall terminate upon the death but not
remarriage of Barbara Buhr Okerson”.

     8.   It further appeared to the Court that in
paragraph 2 in the Motion on Order for Appellate
Attorney Fees the following appears:

          “2.   In the event Barbara Buhr Okerson
     should die before John Russell Okerson has
     satisfied his alimony obligation under this
     agreement, John Russell Okerson agrees and is
     hereby ordered to make payments in an amount
     equal to his remaining alimony obligation to
     Larry Rice, attorney for the Defendant, for a
     period no longer than the period originally
     scheduled for the alimony payments or until
     an amount equal to his remaining alimony
     obligation (appellate attorney fees and
     expenses) have been satisfied.”

     9.   It has been announced to the Court that said
paragraph 2 appearing in the Order on Motion for
Appellate Attorney Fees has been the basis of the
Internal Revenue Service questioning the tax
deductibility of said fees paid by John Russell
Okerson.

     10. It is therefore held by this Honorable Court
in regard to the Order of Motion for Appellate Attorney
Fees that it was the stated intention of this Court to
make said alimony payments, which have been paid in
full by stipulation of the parties, taxable income to
Barbara Buhr Okerson and tax deductible to John Russell
Okerson as alimony.

     11. It further appeared to the Court that the
paragraph 2 quote above contained a contingency that
did not occur and therefore should not be the basis of
confusion as to the Court’s intention in this cause.

     12. It further appeared to the Court that
notwithstanding Barbara Buhr Okerson’s opposition to
the Court’s decision in this cause that the findings
and holdings of this Order are hereby ADJUDGED, ORDERED
AND DECREED.
                                 - 9 -

                            Discussion

     We decide whether petitioners may deduct the $21,600 as

alimony.   Respondent determined they could not.   Petitioners

concede in brief that they must prove this determination wrong in

order to prevail.   The fact that this case was submitted to the

Court on the basis of a fully stipulated record neither alters

petitioners’ burden of proof nor changes the requirements

otherwise applicable with respect to adducing proof or the effect

of a failure of proof.   See Rule 122(b); Kitch v. Commissioner,

104 T.C. 1, 5 (1995), affd. 103 F.3d 104 (10th Cir. 1996).

     An individual such as petitioner may generally deduct

payments made during the taxable year to a spouse2 to the extent

that the payments are alimony that is includable in the spouse’s

gross income.   See sec. 215(a) and (b).   Payments are alimony

that is includable in a spouse’s gross income when each of the

following requirements is met:    (1) The payments are made in

cash, (2) the payments are received by (or on behalf of) the

spouse under a divorce or separation instrument, (3) the divorce

or separation instrument does not provide that the payments are

not reportable as alimony, (4) the spouses reside in separate

households at the time the payments are made, (5) the spouses do

not file a joint return, and (6) the payor spouse’s liability for



     2
       We use the term “spouse” to refer to a present or former
spouse.
                                - 10 -

the payments, or for making other payments in substitute of those

payments, does not continue for any period after the payee

spouse’s death.    Sec. 71(b)(1), (e); see also sec. 71(c)(1) (a

payee spouse’s gross income does not include any part of a

payment that a divorce or settlement agreement fixes as payable

for the support of children of the payor spouse).    We concern

ourselves only with the requirement in dispute; i.e., the payor

spouse’s liability for the payments and for any substitute

payments must cease as of the payee spouse’s death.    See sec.

71(b)(1)(D).3    Whether a payor spouse is liable to make an

alimony or substitute payment after a payee spouse’s death is

determined by looking first to the terms of the applicable

divorce documents which, if they speak unambiguously as to this

matter, are dispositive of the matter.    See Hoover v.

Commissioner, 102 F.3d 842 (6th Cir. 1996), affg. T.C. Memo.

1995-183.     In construing these documents, the mere fact that the

documents may characterize a payment as alimony has no effect on

the consequences of that payment for Federal income tax purposes.

Id. at 844.




     3
       Sec. 71(b)(1)(D) provides that payments in cash qualify as
alimony if “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.”
                                - 11 -

       Here, petitioners acknowledge that the applicable divorce

documents are the 1995 decree and the 1997 decree (collectively,

the decrees) and that the decrees conflict with section

71(b)(1)(D) in that they state that, upon Okerson’s death,

petitioner must continue to make payments in the same amount as

the payments which he must pay before her death.    Petitioners

argue, however, that the intent of the State court was to allow

petitioner to deduct the $117,000 and $33,500 as alimony.

Petitioners consider relevant the fact that petitioner paid both

of these amounts during Okerson’s lifetime and that he never had

to pay any of the post death payments described in the decrees.

       Petitioners focus erroneously on the intent of the State

court as support for their argument that they are entitled for

Federal income tax purposes to deduct the disputed payments as

alimony.    While State law establishes the property interests of

divorcing parties, Federal law controls the Federal income tax

treatment of those interests.    Hoover v. Commissioner, supra at

844.    Here, the applicable Federal law is set forth in section

71, which, in its present form, provides the exclusive means by

which a taxpayer may deduct a payment as alimony for Federal

income tax purposes.    Id. at 844-845.   Through that section,

Congress eliminated any consideration of intent in determining

the deductibility of a payment as alimony in favor of a more

straightforward, objective test that rests entirely on the
                                - 12 -

fulfillment of explicit requirements set forth in section 71.

Id.; see also Rosenthal v. Commissioner, T.C. Memo. 1995-603

(“Whether or not the parties intended for the payments to be

deductible to petitioner, we must focus on the legal effect of

the agreement in determining whether the payments meet the

criteria under section 71.”).    As the House Committee on Ways and

Means articulated in its report on section 71 in discussing the

need for such an objective test:

     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 and should lead to less
     litigation. The committee bill attempts to define
     alimony in a way that would conform to general notions
     of what type of payments constitute alimony as
     distinguished from property settlements and to prevent
     the deduction of large, one-time lump-sum property
     settlements. [H. Rept. 98-432 (Pt. 2), at 1495-1495
     (1984).]

     Although the parties to a divorce proceeding may intend that

certain payments be considered alimony for Federal income tax

purposes, and a court overseeing that proceeding may intend the

same, Congress has mandated through section 71(b)(1)(D) that

payments qualify as alimony for Federal income tax purposes only

when the payor’s liability for those payments, or for any

payments which may be made in substitute thereof, terminates upon

the payee spouse’s death.   Petitioners fail this requirement in

that both of the decrees state specifically and unequivocally
                              - 13 -

that petitioner’s obligation to pay alimony will terminate upon

the death of Okerson but that petitioner will then be liable to

start making corresponding payments in substitute of the alimony

payments.   The complete termination upon the death of the payee

spouse of all payments made as alimony or in substitute thereof

is an indispensable part of Congress’s scheme for deducting a

payment as alimony for Federal income tax purposes, and it is

something that may not be overcome simply because the payor may

establish an intent that the payments be deductible by the payor

spouse as alimony.   As the House Committee on Ways and Means

stated sweepingly in its report on section 71:   “In order to

prevent the deduction of amounts which are in effect transfers of

property unrelated to the support needs of the recipient, the

bill provides that a payment qualifies as alimony only if the

payor * * * has no liability to make any such payment for any

period following the death of the payee spouse.”   H. Rept.

98-432, supra at 1496.

     Having decided that the definition of alimony for Federal

income tax purposes turns on a fulfillment of the statutory test

and not on the intent of the parties to a divorce proceeding or

of the court overseeing that proceeding, we now turn to deciding

whether the post death payments described in the decrees are

substitute payments within the context of section 71(b)(1)(D).

Under section 1.71-1T(b), Q&A-14, Temporary Income Tax Regs.,
                               - 14 -

49 Fed. Reg. 34456 (Aug. 31, 1984), payments are treated as

substitute payments for purposes of section 71(b)(1)(D) to the

extent that they would begin as a result of the payee spouse’s

death and would substitute for a continuation of payments which

would otherwise qualify as alimony but which would terminate on

account of the payee spouse’s death.    See also H. Rept. 98-432,

supra at 1496.    Such is the case here.   All of the post death

payments described in the decrees would be made after Okerson’s

death, and they would be made only if Okerson died before

petitioner satisfied his alimony obligations under the decrees.

The post death payments also would be made in substitute of the

alimony payments under the decrees, which would terminate on

account of Okerson’s death.

     Petitioners rely erroneously upon the fact that petitioner

never actually made one of these post death payments.     This fact

is unimportant.    The standard established by Congress for

substitute payments is not, as petitioners would have it,

whether a payor spouse actually makes a substitute payment.     The

standard, as gleaned from section 71(b)(1)(D), as well as from

the regulations interpreting that section and from the

legislative history, is whether the payor spouse could have to

make a substitute payment upon the death of the payee spouse.

Section 71(b)(1)(D) provides that payments qualify as alimony for

Federal income tax purposes if the payments are made in cash and
                              - 15 -

“there is no liability to make any such payment * * * (in cash or

property) as a substitute for such payments after the death of

the payee spouse.”   The applicable regulations, specifically

section 1.71-1T(b), Q&A-14, Temporary Income Tax Regs., supra,4

state:

     To the extent that one or more payments are to begin to
     be made, increase in amount, or become accelerated in
     time as a result of the death of the payee spouse, such
     payments may be treated as a substitute for the
     continuation of payments terminating on the death
     of the payee spouse which would otherwise qualify as
     alimony or separate maintenance payments. * * *

The legislative history states:

     the bill provides that a payment qualifies as alimony
     only if the payor * * * has no liability to make any
     such payment for any period following the death of the
     payee spouse. A provision for a substitute payment,
     such as an additional amount to be paid as child
     support after the death of the payee spouse will
     prevent a corresponding amount of the payment to the
     payee spouse from qualifying as alimony. * * *
     [H. Rept. 98-432, supra at 1496.]

     We conclude that all of the post death payments described in

the decrees are substitute payments for purposes of section

71(b)(1)(D) and turn to decide the tax consequences that result

from this characterization.   Pursuant to section 1.71-1T(b), Q&A-

13, Temporary Income Tax Regs., supra, the fact that a payor

spouse is required to make substitute payments means that none of


     4
       While these temporary regulations were superseded in part
by the technical correction provisions of the Tax Reform Act of
1986, Pub. L. 99-514, sec. 1843(b), 100 Stat. 2853, the portions
of these temporary regulations that we rely upon herein were not
affected by those provisions and continue to be effective.
                              - 16 -

the corresponding payments which otherwise qualified as alimony

under section 71 are deductible as alimony.    See H. Rept. 98-432,

supra at 1496; see also Cunningham v. Commissioner, T.C. Memo.

1994-474 (“If a payor spouse continues to be liable to make even

one otherwise qualifying payment after the death of the payee

spouse, none of the related payments required before the payee

spouse’s death will be alimony.”).     Section 1.71-1T(b), Examples

(1) and (2), Temporary Income Tax Regs., supra, illustrates this

point.   Under Example (1), the divorce decree states that A must

pay alimony to B in the form of six annual payments of $30,000.

The decree also states that this obligation will terminate upon

the death of B, but if any of the children of A and B are minors

at that time, A must then make annual payments of $10,000 to a

trust benefiting those children.   The example states that A’s

liability to make the $10,000 payments is a substitute for

$10,000 of each of the $30,000 payments and that $10,000 of each

$30,000 payment fails to qualify as alimony.    Under Example (2),

the divorce decree states that A must pay alimony to B in the

form of 15 annual payments of $30,000.    The decree also states

that this obligation will terminate upon the death of B but that

A must then pay any unpaid amount to B’s estate in a lump sum.

Example (2) states that A’s liability to pay the lump sum is a

substitute for the full amount of each of the $30,000 payments

and that none of the $30,000 payments qualifies as alimony.
                                - 17 -

Example (2) also states that the result would be the same even if

the lump sum was required to be discounted to reflect the

prepayment.

     Here, petitioner was required by the 1995 decree to pay

Okerson monthly alimony totaling $117,000.    This obligation would

have terminated upon Okerson’s death, but petitioner would then

have been required to pay the unpaid alimony towards the

education of his and Okerson’s children until the children

completed 4 years of college.    Petitioner also was required by

the 1997 decree to make additional monthly alimony payments

totaling $33,500 to Okerson’s attorney.    This obligation also

would have terminated upon the death of Okerson, but petitioner

would then have been required to continue paying the unpaid

amount to Okerson’s attorney.    Because under both decrees the

substitute payments would have been the same amount as the

amounts payable as alimony under the decrees, we conclude

consistently with the temporary regulations and the examples set

forth therein and discussed above that petitioner is not entitled

to deduct any of the $21,600 as alimony for Federal income tax

purposes.

     In sum, when the terms of the applicable divorce documents

state, as here, that the payor spouse upon the death of the payee

spouse must continue to make payments in substitute of payments

which are required to be paid as alimony, the post death payments
                              - 18 -

fail to qualify as alimony for Federal income tax purposes.     In

addition, a corresponding amount of any payment which is to be

made before the payee spouse’s death, and which otherwise would

be deductible as alimony, fails to qualify as well.   Because

respondent determined as much with respect to the payments in

dispute, we sustain that determination.

     All arguments for a contrary result have been considered,

and we have concluded that those arguments not discussed herein

are without merit.   Accordingly,


                                          Decision will be entered

                                    for respondent.
