Case — Deductibility of Alimony

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TL Case Summ

THE QUESTION

Are payments made after a spouse remarries deductible as alimony?

THE DISPUTE

Taxpayer Says: Payments made according to a divorce decree after his former spouse remarried are deductible alimony.

Internal Revenue Service Says: The taxpayer’s legal obligation to make the payments stopped when his former spouse remarried, and payments made after that time are not deductible.

THE LAW

From Internal Revenue Code Section 215(a): Allows a deduction for alimony payments paid during the payor’s taxable year.

From Internal Revenue Code Section 215(b): Defines alimony or separate maintenance as any “payment (as defined in section 71(b)) which is includible in the gross income of the recipient under section 71.”

From Internal Revenue Code Section 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 includible in gross income * * * 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.

From Washington Rev. Code Ann. sec. 26.09.170(2) (West 2005): Provides “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.”

THE CAUSE OF THE DISPUTE

To deduct cash payments to a former spouse as alimony, the payments you make must satisfy the four-step determination in section 71(b). Alimony is deductible on your federal income tax return if you’re the payor, or taxable to you if you receive it. You don’t have to itemize to deduct alimony payments.

In this case, the taxpayer, who lived in Washington state, made alimony payments to his former wife from 2002 through 2007. Without his knowledge, his former spouse remarried in 2006. Once he learned of the remarriage, the taxpayer stopped making alimony payments. He deducted the amount he paid in 2007 before he learned of the remarriage. He believes the payments were deductible because he made them pursuant to the divorce decree.

The IRS says the taxpayer’s legal obligation to pay spousal maintenance terminated as a matter of Washington state law when his spouse remarried. Therefore the payments were not received under a divorce instrument as required by section 71(b)(1)(A), and are not deductible.

WHAT WOULD YOU DECIDE?

Make your selection, then see “The Court’s Decision” below for a full explanation

For the or for the

THE COURT’S DECISION

Download (PDF, 17KB)

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HL Carpenter, an experienced investor and a CPA, specializes in reader friendly articles on taxes and investing for individuals and small businesses, and publishes two newsletters: Taxing Lessons and Top Drawer Ink. Visit TaxingLessons.com and HLCarpenter.com.

This information should not be considered legal, investment or tax advice. Taxing Lessons and Top Drawer Ink Corp. do not provide legal, investment or tax advice. Always consult your legal, investment and/or tax advisor regarding your personal situation.

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For the taxpayer. There is no requirement in section 71(b)(1)(A) that payments be made under a legally enforceable duty in order to qualify for the alimony deduction. The only requirement is that any payment be “received by (or on behalf of) a spouse under a divorce or separation instrument.” Although it was once the case that entitlement to an alimony deduction under section 71 required payments to be made under a legally enforceable obligation, it has not been so for more than 25 years. Taxpayer’s 2007 payments satisfy the requirements for alimony payments as outlined in the relevant regulations.
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