MEMORANDUM OPINION

WELLS, Chief Judge: Respondent determined deficiencies in the Federal income tax of petitioner Jane Gilbert, formerly Jane Hawley (Ms. Gilbert), for the taxable years 1993, 1994, and 1995 of $ 7,163, $ 8,922, and $ 6,157, respectively. Respondent determined deficiencies in the Federal income tax of petitioner Richard C. Hawley, M.D. (Mr. Hawley), for the taxable years 1993, 1994, and 1995 of $ 21,644, $ 23,261, and $ 19,355, respectively. ¹

After concessions, the issue remaining to be decided in the instant cases is whether any part of the unallocated child and spousal support payments constitutes alimony under26 U.S.C. 71" type="statute">26 U.S.C. 71"> section 71² that is deductible by the payor spouse, Mr. Hawley, under 26 U.S.C. 215" type="statute">26 U.S.C. 215">section 215, and includable in the gross income of the payee spouse, Ms. Gilbert, under 26 U.S.C. 61" type="statute">26 U.S.C. 61 (a)(8)">sections 61(a)(8) and 26 U.S.C. 71" type="statute">26 U.S.C. 71 (a)">71(a). In the notices of deficiency and on brief, respondent has taken inconsistent positions, in that respondent disallowed deductions to Mr. Hawley and required Ms. Gilbert to report alimony income. Respondent asks us to allocate the subject payments consistently between petitioners. Moreover, if we find that the payments constitute alimony, then we must decide whether Ms. Gilbert is liable under26 U.S.C. 55" type="statute">26 U.S.C. 55"> section 55 for alternative minimum tax because of the increase in her gross income from the alimony adjustment.

2003 Tax Ct. Memo LEXIS 92">*93     Background

The parties submitted the instant case fully stipulated, without trial, pursuant to Rule 122. The parties' stipulations of facts are hereby incorporated by this reference and are found as facts in the instant case. ³

Petitioners were residents of Pennsylvania when they petitioned this Court. On April 25, 1977, petitioners were married in Buchanan, Georgia. Three children were born of petitioners' marriage: Charles R. Hawley (born September 7, 1978), Katherine G. Hawley (born July 9, 1980), and Margaret G. Hawley (born August 25, 1983).

On September 22, 1990, petitioners separated and thereafter were not members of the same household. On October 23, 1990, Ms. Gilbert sued Mr. Hawley2003 Tax Ct. Memo LEXIS 92">*94 for divorce. On October 25, 1990, Mr. Hawley answered and counterclaimed against Ms. Gilbert for divorce. At the time petitioners initiated the divorce proceedings, they were residents of Schuylkill County, Pennsylvania.

On February 4, 1992, the Court of Common Pleas of Schuylkill County entered an agreement and order of support (hereinafter the February 4, 1992, separation instrument), which stated:

     AND NOW, this 4th day of February, 1992, upon agreement of

   the parties, it is hereby ORDERED that the Defendant is directed

   to pay the sum of $ 2,077.00 bi-weekly for and toward the

   support of wife and three (3) minor children. In addition, the

   Defendant is directed to pay the sum of $ 100.00 bi-weekly on

   account of accumulated arrearages, for a total sum of $ 2,177.00

   bi-weekly. The first payment in the sum of $ 2,177.00 is to be

   made February 5, 1992 and a like sum each second Wednesday



   thereafter.



     As of February 5, 1992 the arrearage balance shall be



  $ 2,224.00



     This Order is to be effective February 5, 1992.

     All payments are to be made2003 Tax Ct. Memo LEXIS 92">*95 to the Domestic Relations

   Section of this Court and mailed to P. O. Box 1192, Pottsville,

PA 17901. The number 18758 must appear on all payments and

   correspondence mailed to this office.

     The parties are directed to make available to all

   dependents named in this Order any employer-provided medical or

   other benefits available at no cost as a benefit of employment

   or at a reasonable cost. The parties are directed to notify the

   Domestic Relations Section in writing within seven (7)

   days of obtaining coverage or any change in coverage.

     Both parties shall inform the Domestic Relations Section

   in writing of any change in employment, change of address

   or change of address of a child receiving support within seven

   (7) days of such change.

     An automatic wage attachment shall be issued without notice

   on Defendant upon default of an amount equal to one month's

   support obligation or at such other time as the Court may

   designate.

     Plaintiff will be responsible to pay the first $ 1,000.00

   per year for2003 Tax Ct. Memo LEXIS 92">*96 uninsured medical expenses including dental,

   orthodontic, optical and prescription drugs. Any uninsured

   medical expenses in excess of $ 1,000.00 per year shall be

   divided between the parties: Plaintiff 35% and Defendant 65%.

     Commencing with the payment due March 1, 1992 Plaintiff

   shall be obligated to make the monthly mortgage payments on the

   residence located at 365 Pershing Drive, Orwigsburg, Schuylkill

   County, Pennsylvania.

Mr. Hawley deducted $ 54,100 in 1993, $ 54,100 in 1994, and $ 51,565 in 1995 as alimony paid to Ms. Gilbert.

Ms. Gilbert did not report the receipt of any payments from Mr. Hawley for 1993, 1994, and 1995. ⁴

On July 18, 1995, petitioners divorced. On November 20, 1995, pursuant to a petition to the Court of Common Pleas of Schuylkill County, that court terminated Mr. 2003 Tax Ct. Memo LEXIS 92">*97 Hawley's obligation to provide spousal support for Ms. Gilbert and transferred the matter to the Domestic Relations Office for "a determination of the appropriate amount of child support." ⁵

             Discussion

We must decide whether all or any part of the predivorce unallocated support payments made by Mr. Hawley to Ms. Gilbert qualify as alimony to the payee spouse, Ms. Gilbert, includable2003 Tax Ct. Memo LEXIS 92">*98 in gross income under 26 U.S.C. 61" type="statute">26 U.S.C. 61 (a)(8)">sections 61(a)(8)⁶ and 26 U.S.C. 71" type="statute">26 U.S.C. 71 (a)">71(a)⁷ and deductible by the payor spouse, Mr. Hawley, under 26 U.S.C. 215" type="statute">26 U.S.C. 215">section 215. ⁸

To be considered alimony unallocated support payments must conform to the requirements of 26 U.S.C. 71" type="statute">26 U.S.C. 71 (b)">section 71(b). Lovejoy v. Comm'r, 293 F.3d 1208">293 F.3d 1208 (10th Cir. 2002), affg. Miller v. Commissioner, T.C. Memo. 1999-273;2003 Tax Ct. Memo LEXIS 92">*99 Zinsmeister v. Commissioner, T.C. Memo. 2000-364; Gonzales v. Commissioner, T.C. Memo. 1999-332. 26 U.S.C. 71" type="statute">26 U.S.C. 71 (b)">Section 71(b) provides in part:

     26 U.S.C. 71" type="statute">26 U.S.C. 71 (b)">SEC. 71(b). Alimony or Separate Maintenance Payments

   Defined. -- For purposes of this section --

     (1) In general. -- The term "alimony or separate

   maintenance payment" means 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 includable

     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 liability2003 Tax Ct. Memo LEXIS 92">*100 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 the instant case, the parties agree that the unallocated support payments meet the requirements subparagraphs26 U.S.C. 71" type="statute">26 U.S.C. 71 (b)(1)(A)"> (A), 26 U.S.C. 71" type="statute">26 U.S.C. 71 (b)(1)(B)">(B), and 26 U.S.C. 71" type="statute">26 U.S.C. 71 (b)(1)(C)">(C) of section 71(b)(1). The parties, however, dispute the application of 26 U.S.C. 71" type="statute">26 U.S.C. 71 (b)(1)(D)">subparagraph (D) of section 71(b)(1). If Mr. Hawley is obligated to make one or more substitute payments after the death of Ms. Gilbert, then none of the unallocated support payments will be considered alimony. See Gonzales v. Comm'r, supra; sec. 1.71-1T(b), Q& A-13, Temporary Income Tax Regs., 49 Fed. Reg. 34456 (Aug. 31, 1984). ⁹

2003 Tax Ct. Memo LEXIS 92">*101 In deciding whether the payments were alimony, we examine the language of the February 4, 1992, separation instrument to ascertain whether it contains a termination upon death condition, and, if it does not, whether State law supplies such a condition. Hoover v. Commissioner, 102 F.3d 842">102 F.3d 842, 102 F.3d 842">847 (6th Cir. 1996), affg. T.C. Memo. 1995-183; see Gonzales v. Comm'r, supra; see also Cunningham v. Commissioner, T.C. Memo. 1994-474.

State law determines certain rights of the parties, and Federal law determines the Federal income tax consequences of those rights. Morgan v. Commissioner, 309 U.S. 78">309 U.S. 78, 309 U.S. 78">80, 84 L. Ed. 585">84 L. Ed. 585, 60 S. Ct. 424">60 S. Ct. 424 (1940); Lucas v. Earl, 281 U.S. 111">281 U.S. 111, 74 L. Ed. 731">74 L. Ed. 731, 50 S. Ct. 241">50 S. Ct. 241 (1930). The February 4, 1992, separation instrument does not explicitly order that payments terminate upon Ms. Gilbert's death, and, thus, we examine Pennsylvania law to determine whether the payments would terminate by operation of Pennsylvania law. 102 F.3d 842">Hoover v. Commissioner, supra at 847.

When examining a matter of State substantive law, we will look to a State's highest court to determine the rights of parties under State law. See Estate of Bosch v. Commissioner, 387 U.S. 456">387 U.S. 456, 387 U.S. 456">465, 18 L. Ed. 2d 886">18 L. Ed. 2d 886, 87 S. Ct. 1776">87 S. Ct. 1776 (1967).2003 Tax Ct. Memo LEXIS 92">*102 The Pennsylvania Supreme Court has not decided the narrow legal issue of whether an unallocated support order covering spousal and child support terminates upon the death of the payee custodial spouse.

Mr. Hawley contends that we must apply Pa. R.C.P. 1910.16-4(f)(3), 42 Pa. Cons. Stat. Ann. (West 2002), to the instant case, which provides: "Unallocated charging orders for child and spousal support, or child support and alimony pendente lite, shall terminate upon the death of the payee spouse or payee ex-spouse." Pa. R.C.P. 1910.16-4(f)(3) became effective on June 5, 2001. The years in issue are Mr. Hawley's and Ms. Gilbert's 1993, 1994, and 1995 tax years. Pennsylvania statues shall not be construed to apply retroactively "unless clearly and manifestly so intended by the General Assembly." 1 PA.C.S. 1926" type="statute">1 Pa.C.S. § 1926">1 Pa. Cons. Stat. Ann. sec. 1926 (West 1995); see Barnes v. Barnes, 528 Pa. 258">528 Pa. 258, 597 A.2d 89">597 A. 2d 89, 597 A.2d 89">92 (Pa. 1991); see also Commonwealth v. Rockwell Manufacturing Co., 392 Pa. 339">392 Pa. 339, 140 A.2d 854">140 A. 2d 854 (Pa. 1958). Pa. R.C.P. 1910.16-4(f)(3) does not indicate that it will have retroactive effect, and consequently we will not apply it retroactively.

Twenty-three Pa. Cons. Stat. Ann. 23 PA.C.S. 4352" type="statute">23 Pa.C.S. § 4352 (a)">section 4352(a) (West 2001), 2003 Tax Ct. Memo LEXIS 92">*103 which addresses the jurisdiction of Pennsylvania courts over divorce proceedings, provides:

  23 PA.C.S. 4352" type="statute">23 Pa.C.S. § 4352">SEC. 4352. Continuing jurisdiction over support orders

     (a) General rule. -- The court making an order of support

   shall at all times maintain jurisdiction of the matter for the

   purpose of enforcement of the order and for the purpose of

   increasing, decreasing, modifying or rescinding the order unless

   otherwise provided by Part VIII (relating to uniform interstate

   family support) or VIII-A (relating to intrastate family

   support) without limiting the right of the obligee, or the

   department if it has an assignment or other interest, to

   institute additional proceedings for support in any county in

   which the obligor resides or in which property of the obligor is

   situated. The Supreme Court shall by general rule establish

   procedures by which each interested party shall be notified of

   all proceedings in which support obligations might be

   established or modified and shall receive a copy of any order

   issued in a case within 14 days after issuance of such order. 2003 Tax Ct. Memo LEXIS 92">*104 A

   petition for modification of a support order may be filed at any

   time and shall be granted if the requesting party demonstrates a

   substantial change in circumstances.

Twenty-three Pa. Cons. Stat. 23 PA.C.S. 4352" type="statute">23 Pa.C.S. § 4352">section 4352 does not explicitly provide that a Pennsylvania court's jurisdiction terminates upon the death of either party to a divorce proceeding. It does, however, grant Pennsylvania courts continuing jurisdiction over support proceedings. A party seeking modification or termination of a support order must petition the Pennsylvania court with jurisdiction over the divorce proceedings. 597 A.2d 89">Barnes v. Barnes, supra at 92 (petition to modify); see Soncini v. Soncini, 417 Pa. Super. 393, 612 A.2d 998">612 A. 2d 998, 612 A.2d 998">1000 (Pa. Super. Ct. 1992) (petition to modify); see also Benjamin v. Benjamin, 408 Pa. Super. 320, 596 A.2d 877">596 A. 2d 877, 596 A.2d 877">878 (Pa. Super. Ct. 1991) (petition to terminate); Mosier v. McCaughtry, 387 Pa. Super. 405, 564 A.2d 241">564 A. 2d 241 (Pa. Super. Ct. 1989). Twenty-three Pa. Cons. Stat. 23 PA.C.S. 4352" type="statute">23 Pa.C.S. § 4352 (a)">section 4352(a) provides strong indication that a Pennsylvania court would retain jurisdiction over a divorce. This would continue, at least temporarily, if the payee custodial spouse died, because the statute2003 Tax Ct. Memo LEXIS 92">*105 and caselaw grant courts continuing jurisdiction over support matters and require a petition to modify or terminate support payments. See Edelstein v. Edelstein, 399 Pa. Super. 536, 582 A.2d 1074">582 A. 2d 1074, 582 A.2d 1074">1077 (Pa. Super. Ct. 1990). In Gonzales v. Commissioner, T.C. Memo. 1999-332, we held (applying New Jersey law) that, when a separation instrument is modifiable, the noncustodial payor spouse could have remained liable to pay support under the separation agreement after the payee spouse's death.

Mr. Hawley contends that the doctrine of abatement applies to the instant cases, and thus the unallocated support order would terminate upon Ms. Gilbert's death. Before the entry of divorce in Pennsylvania, divorce actions abate upon the death of one of the parties. Haviland v. Haviland, 333 Pa. Super. 162, 481 A.2d 1355">481 A. 2d 1355, 481 A.2d 1355">1356 (Pa. Super Ct. 1984) (citing Matuszek v. Matuszek, 160 Pa. Super. 526, 52 A.2d 381">52 A. 2d 381 (Pa. Super. Ct. 1947)). ¹⁰ Economic claims for equitable distribution of marital property also abate upon the death of a party to the divorce action. Reese v. Reese, 351 Pa. Super. 521, 506 A.2d 471">506 A. 2d 471, 506 A.2d 471">474 (Pa. Super. Ct. 1986); see Myers v. Myers, 397 Pa. Super. 450, 580 A.2d 384">580 A. 2d 384, 580 A.2d 384">385 (Pa. Super. Ct. 1990) (ancillary2003 Tax Ct. Memo LEXIS 92">*106 economic claims abate). But see Pastuszek v. Pastuszek, 346 Pa. Super. 416, 499 A.2d 1069">499 A. 2d 1069, 499 A.2d 1069">1070-1071 (Pa. Super. Ct. 1985) (no abatement if death occurs after a divorce decree, but before the disposition of equitable claims).

2003 Tax Ct. Memo LEXIS 92">*107 Twenty-three Pa. Cons. Stat. Ann. 23 PA.C.S. 3707" type="statute">23 Pa.C.S. § 3707">section 3707 (West 2001), which codifies the doctrine of abatement, provides: "Upon the death of the payee party, the right to receive alimony pursuant to this chapter shall cease." ¹¹ We note, however, that a similar provision does not exist for the termination of child support pursuant to a divorce proceeding. See Garney v. Estate of Hain, 439 Pa. Super. 42, 653 A.2d 21">653 A. 2d 21, 653 A.2d 21">23 (Pa. Super. Ct. 1995). In Pennsylvania, both parents are equally responsible for their children who are unemancipated and under the age of 18. 23 PA.C.S. 4321" type="statute">23 Pa.C.S. § 4321">23 Pa. Cons. Stat. Ann. sec. 4321 (West 2001); ¹² see Oeler v. Oeler, 527 Pa. 532">527 Pa. 532, 594 A.2d 649">594 A. 2d 649, 594 A.2d 649">651 (Pa. 1991). In construing an unallocated support agreement, a Pennsylvania court must promote the best interests of the parties' children, 594 A.2d 649">Oeler v. Oeler, supra, and assure their uninterrupted maintenance, Ritter v. Ritter, 359 Pa. Super. 12, 518 A.2d 319">518 A. 2d 319, 518 A.2d 319">322-323 (Pa. Super. Ct. 1986). For the tax years in issue, the treatment of an unallocated support instrument is ambiguous under Pennsylvania law. If the instrument addressed only alimony, Mr. Hawley's duty to make payments would terminate on Ms. Gilbert's death. See 23 Pa. Cons. 2003 Tax Ct. Memo LEXIS 92">*108 Stat. 23 PA.C.S. 3707" type="statute">23 Pa.C.S. § 3707">sec. 3707. However, the unallocated separation agreement also covers child support, and Pennsylvania law is ambiguous on that issue. ¹³ See 653 A.2d 21">Garney v. Estate of Hain, supra (an equivalent to 23 PA.C.S. 3707" type="statute">23 Pa.C.S. § 3707">23 Pa. Cons. Stat. sec. 3707 does not exist for child support); see also 594 A.2d 649">Oeler v. Oeler, supra (courts must promote the best interests of children); 518 A.2d 319">Ritter v. Ritter, supra (court must ensure the uninterrupted maintenance of children). Furthermore, State courts maintain continuing jurisdiction over separation instruments, and petitions are required for modification of such instruments. 23 PA.C.S. 4352" type="statute">23 Pa.C.S. § 4352">23 Pa. Cons. Stat. sec. 4352; see Barnes v. Barnes, 528 Pa. 258">528 Pa. 258, 597 A.2d 89">597 A. 2d 89 (Pa. 1991).

2003 Tax Ct. Memo LEXIS 92">*109 For the years in issue, Pennsylvania State law does not provide an explicit termination condition on separation instruments. Nor do we find such a condition in the language of the February 4, 1992, separation instrument itself.

In pertinent part, the February 4, 1992, separation instrument orders: "An automatic wage attachment shall be issued without notice on Defendant upon default of an amount equal to one month's support obligation or at such other time as the Court may designate." Mr. Hawley is designated the defendant in the February 4, 1992, separation instrument. The unallocated support payments do not necessarily cease upon the death of Ms. Gilbert because the Pennsylvania court may attach Mr. Hawley's wages for failure to pay an unallocated support obligation, or attach Mr. Hawley's wages "at such other time as the Court may designate." As a result of such an attachment, Mr. Hawley's liability under the February 4, 1992, separation instrument may extend beyond Ms. Gilbert's death.

In Miller v. Commissioner, T.C. Memo. 1999-273, we examined a provision of an unallocated support order arising from a divorce in Colorado, which ordered that unallocated support2003 Tax Ct. Memo LEXIS 92">*110 payments continue "until further Order of Court." We conclude that the provision in issue in Miller, is similar to the provision in issue in the instant case because the unallocated support payments may continue beyond the death of the payee spouse at the discretion of the Pennsylvania court. Consequently, we have no reason to conclude that Mr. Hawley's obligation to make unallocated support payments under the February 4, 1992, separation instrument terminates upon the death of Ms. Gilbert. See generally Hoover v. Commissioner, 102 F.3d 842">102 F.3d at 848.

Accordingly, we hold that Mr. Hawley's obligation to provide unallocated support to Ms. Gilbert and their children may continue after the death of Ms. Gilbert and consequently hold that 26 U.S.C. 71" type="statute">26 U.S.C. 71 (b)(1)(D)">subparagraph (D) of section 71(b)(1) has not been satisfied. Having found the unallocated support payments do not constitute alimony, we hold that Ms. Gilbert is not liable for the 26 U.S.C. 55" type="statute">26 U.S.C. 55">section 55 alternative minimum tax.

We have considered all of the contentions and arguments of the parties that are not discussed herein, and we find them to be without merit, irrelevant, or moot.

To reflect the foregoing,

2003 Tax Ct. Memo LEXIS 92">*111 Decisions will be entered under Rule 155.