FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CAROL A. JOHANSON; ALFRED F. 

MELZIG, JR., No. 06-75623 Petitioners-Appellants,

Tax Ct. No.

v.  2490-05

COMMISSIONER OF INTERNAL OPINION REVENUE,

Respondent-Appellee. 

Appeal from a Decision of the

United States Tax Court

Submitted August 15, 2008*

San Francisco, California

Filed September 3, 2008

Before: Diarmuid F. O’Scannlain and Barry G. Silverman,

Circuit Judges, and James K. Singleton,**

Senior District Judge.

Opinion by Judge Silverman

*The panel unanimously finds this case suitable for decision without

oral argument. See Fed. R. App. P. 34(a)(2). 

**The Honorable James K. Singleton, United States District Judge for

the District of Alaska, sitting by designation. 

12087
COUNSEL

Marjorie A. O’Connell, O’Connell & Associates, Washington, D.C., for the petitioners-appellants. 

JOHANSON v. CIR 12089
Regina S. Moriarty, United States Department of Justice, Tax

Division, Washington, D.C., for the respondent-appellee. 

OPINION

SILVERMAN, Circuit Judge: 

Spousal support payments made pursuant to a divorce settlement agreement are deemed to be “alimony” — and therefore income to the recipient and deductible by the payor —

if, among other things, the payments are to terminate on the

death of the payee spouse. In the present case, the marital settlement agreement did not expressly state what would happen

to the payments in the event of the payee’s death. We hold

today that the Tax Court correctly looked to state law to determine whether or not the payments would survive the payee’s

death. Under California Family Code section 4337, spousal

support terminates on the death of either spouse unless the

parties expressly agree in writing to the contrary. The Tax

Court held that the payments in this case are alimony because

the payee failed to clearly and convincingly establish, as

required by California law, that the payments would continue

past her death. We affirm. 

I. FACTS

In 1996, Carol A. Johanson and John Weiler divorced in

California after nearly thirty years of marriage. Johanson and

Weiler executed a “Marital Settlement Agreement” that obligated Weiler to make monthly “spousal support” payments of

$5,250 to Johanson until October 31, 2010. With respect to

these payments, the Agreement explicitly provides:

IV. SPOUSAL SUPPORT

* * *

12090 JOHANSON v. CIR
26. Both parties are aware that this marriage is one

considered and characterized as a marriage of long

duration. As a result, certain responsibilities for support may exist between the parties for some

unknown length of time after separation and after a

dissolution is entered unless both parties freely and

voluntarily waive their rights to support and agree to

the termination of the courts [sic] jurisdiction over

the issue of spousal support. Once this waiver and

agreement is entered, it is non-reversible and may

work a considerable hardship on either one or both

of the parties. 

26. [sic] Being aware of the above, the court will

retain jurisdiction over John’s right to collect spousal

support from Carol until May 31, 2011 at which time

his right to collect such support shall permanently

terminate. This termination date is absolute and nonmodifiable under any circumstances. 

27. Being aware of the above, John agrees to pay

spousal support to Carol in the amount of $5,250.00

per month beginning the first month following the

sale of the residence (close of escrow). Spousal support shall be due, one-half on the first of each and

every month and one-half on the 15th of each and

every month. Spousal support shall continue at this

amount through October 31, 2010 at which time

Carol’s right to collect spousal support from John

will permanently terminate. This termination date is

absolute and non-modifiable under any circumstances . . . . 

28. The duration of spousal support is nonmodifiable and the court will not have jurisdiction to

modify the length of time John will pay spousal support to Carol. Specifically, the court does not have

jurisdiction to award any spousal support payable

JOHANSON v. CIR 12091
from John to Carol for any period beyond October

31, 2010, regardless of the circumstances that may

arise and regardless of whether any motion to modify spousal support is filed before, on or after October 31, 2010. The court also does not have

jurisdiction to modify the amount of spousal support

payable from John to Carol except for two circumstances, John’s death, prolonged unemployment or

John’s disability. Upon John’s death, spousal support

will terminate permanently. Upon John’s prolonged

unemployment, the court has the jurisdiction to

lower the amount of support for the length of the

unemployment provided appropriate efforts are

being made by John to find employment. Upon

John’s disability, the court has the jurisdiction to

lower the amount of support for the length of the disability. Disability is defined as the inability to pursue

an occupation because of physical or mental impairment. If such a modification is sought by John and

ordered by the court, the court may increase or

decrease the amount of support as the circumstances

warrant but under no circumstances does the court

have the jurisdiction or the authority to raise spousal

support over the amount of $5,250.00 per month. 

In 2002, Weiler paid Johanson $63,000 pursuant to the

spousal support provision of the Agreement. Johanson filed

her 2002 tax return jointly with her new husband and did not

include the $63,000 in spousal support payments as part of

their gross income. On November 10, 2004, the IRS notified

Johanson of a tax deficiency of $20,475 and a penalty of

$4,095. The IRS explained that the $63,000 Johanson

received from Weiler constitutes alimony and as such is

includible in taxable gross income. Somewhere along the

way, the IRS decided not to pursue the penalty. 

In considering Johanson’s petition for redetermination of

deficiency, the United States Tax Court held that the spousal

12092 JOHANSON v. CIR
support payments satisfy the definition of alimony in section

71(b)(1) of the Internal Revenue Code because Weiler is not

obligated to continue the spousal support payments for any

time after the death of Johanson, the payee spouse. In so holding, the Tax Court relied on California Family Code section

4337, which provides as follows: 

Except as otherwise agreed by the parties in writing,

the obligation of a party under an order for the support of the other party terminates upon the death of

either party or the remarriage of the other party. 

The Tax Court also rejected Johanson’s arguments that the

payments were part of a property settlement or an overall

lump-sum obligation. 

We have jurisdiction to review Johanson’s timely appeal of

the Tax Court’s decision. See 26 U.S.C. § 7482(a)(1). 

II. ANALYSIS

We “review decisions of the Tax Court under the same

standards as civil bench trials in the district court. Therefore,

conclusions of law are reviewed de novo, and questions of

fact are reviewed for clear error.” Milenbach v. Comm’r, 318

F.3d 924, 930 (9th Cir. 2003) (internal citation omitted). “The

interpretation and meaning of contract provisions are questions of law reviewed de novo.” Id.

[1] The Internal Revenue Code requires that “alimony or

separate maintenance payments” be included in taxable gross

income. See 26 U.S.C. § 71(a). The Code provides a four-part

definition of “alimony or separate maintenance payments”: 

(1) In general.—The term “alimony or separate

maintenance payment” means any payment in cash

if— 

JOHANSON v. CIR 12093
(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. 

Id. § 71(b)(1). Subsection (D), the only part of this definition

at issue in this appeal, thus requires that for payments to be

deemed alimony, there must be no liability to continue payments after the death of the payee spouse. See id.

§ 71(b)(1)(D). Otherwise, the payments are deemed a disguised property division, neither taxable to the payee nor

deductible by the payor. A support agreement that does not

explicitly provide that payments terminate upon the death of

the payee spouse can nevertheless satisfy § 71(b)(1)(D) if the

payments terminate in the event of the payee spouse’s death

by operation of state law. See Kean v. Comm’r, 407 F.3d 186,

191 (3d Cir. 2005); Lovejoy v. Comm’r, 293 F.3d 1208, 1210

(10th Cir. 2002); Barrett v. United States, 74 F.3d 661, 664

(5th Cir. 1996); Hoover v. Comm’r, 102 F.3d 842, 846-48

12094 JOHANSON v. CIR
(6th Cir. 1996); Zinsmeister v. Comm’r, 80 T.C.M. (CCH)

774 (2000); see also I.R.S. Notice 87-9, 1987-1 C.B. 421.

Where “state family law is ambiguous as to the termination of

payments upon the death of the payee, a federal court will not

engage in complex, subjective inquiries under state law;

rather the court will read the divorce instrument and make its

own determination based on the language of the document.”

Hoover, 102 F.3d at 846; see also Kean, 407 F.3d at 191

(declining to delve into the “intricacies” of state family law).

In this case, state family law is unambiguous as to the termination of payments upon the death of the payee, so we need

not make an independent determination. 

[2] Here, the Agreement does not explicitly provide

whether Weiler’s liability to make monthly payments to

Johanson continues after her death. Under California law,

“[e]xcept as otherwise agreed by the parties in writing, the

obligation of a party under an order for the support of the

other party terminates upon the death of either party or the

remarriage of the other party.” Cal. Fam. Code § 4337. A

written agreement to waive section 4337 “must be specific

and express.” In re Marriage of Thornton, 115 Cal. Rptr. 2d

380, 383 (Ct. App. 2002).1 While “[n]o particular words are

required . . . silence will not do.” Id. (quoting In re Marriage

of Glasser, 226 Cal. Rptr. 229, 230 (Ct. App. 1986)). Mere

failure to include death as a terminating event does not constitute waiver of section 4337. Id. at 385. 

[3] However, where there is “language in the written agreement reasonably susceptible to interpretation as a declaration

of an intent that support continue beyond [death],” extrinsic

evidence is admissible in order to determine whether the writ1Although Thornton involved the remarriage provision of § 4337, we

follow California cases that have indicated that the death and remarriage

provisions of section 4337 should be interpreted in a similar fashion. See,

e.g., In re Marriage of Cesnalis, 131 Cal. Rptr. 2d 436, 439 (Ct. App.

2003). 

JOHANSON v. CIR 12095
ten agreement waived section 4337. In re Marriage of Cesnalis, 131 Cal. Rptr. 2d 436, 439-40 (Ct. App. 2003) (finding

a non-modification statement “expressly limited to the . . .

‘duration of spousal support’ ” to warrant such analysis of

extrinsic evidence). In Cesnalis, the question was whether

spousal support payments would continue in the event of the

payee spouse’s remarriage. Id. at 438. Similar to the language

in the Cesnalis agreement, the agreement here contains specific non-modification statements related to the duration of

the spousal support payments that are “reasonably susceptible

to interpretation” as an agreement to continue payments after

Johanson’s death. See id. at 439-40. Therefore, extrinsic evidence was admissible on the question of whether the parties

waived the statutory termination of spousal support on the

payee’s death. See id. at 439. 

Under California law, Johanson “bears the burden of proving, by clear and convincing evidence” that there is a written

agreement to continue the spousal support payments beyond

Johanson’s death. Id. The Tax Court did not clearly err in

holding that the extrinsic evidence proffered by Johanson

failed to meet this standard. That language explicitly providing for the termination of the spousal support payments at

“the death of either party” was deleted from a prior version

of the Agreement does not clearly and convincingly establish

that the parties agreed in writing that the payments to Johanson would continue past her death. That the parties obtained

life insurance on Weiler’s life to secure the spousal support

payments does not shed any light on what the parties agreed

to in the event of Johanson’s death. The fact that Weiler continues to pay spousal support after Johanson remarried does

not constitute a written agreement regarding the status of payments in the event of Johanson’s death. 

[4] The Tax Court did not clearly err in ruling that Johanson failed to prove by clear and convincing evidence that she

and Weiler agreed in writing that the spousal support payments would continue past her death. Consequently, Weiler’s

12096 JOHANSON v. CIR
payments to Johanson were correctly found to be alimony,

and therefore, taxable to Johanson.2

The decision of the Tax Court is AFFIRMED. 

2We do not address Johanson’s estoppel argument raised in her reply

brief because the Tax Court did not consider it, Johanson did not raise it

in her opening brief, and the Commissioner did not discuss the issue. See

United States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992). 

JOHANSON v. CIR 12097