Is an additional support payment requested by an ex-spouse deductible as alimony?
Taxpayer Says: The increase in monthly payments was requested by his ex-wife, and is deductible as alimony.
Internal Revenue Service Says: Amounts paid over and above the amounts mandated by the judgment of dissolution do not qualify as alimony.
From Internal Revenue Code Section 71(b)(1): An alimony payment is defined as any payment in cash that satisfies the four requirements listed under section 71(b)(1). The first requirement is that the payment be received by or on behalf of a spouse under a divorce or separation instrument.
From Internal Revenue Code Section 71(b)(2): Defines a divorce or separation instrument as a decree of divorce or a written instrument incident to such a decree, a written separation agreement, or a decree requiring a spouse to make payments for the support or maintenance of the other spouse.
From Internal Revenue Code Section 215(a): Allows a deduction for alimony payments made during the payor’s taxable year.
From Internal Revenue Code Section 215(b): Alimony means any “payment (as defined in section 71(b)) which is includible in the gross income of the recipient under section 71.”
From Herring v. Commissioner, 66 T.C. 308, 311 (1976): A divorce or separation agreement must be made in writing. A payment made pursuant to an oral agreement is not a payment made pursuant to a divorce or separation instrument unless there is some type of written instrument memorializing the agreement.
From Leventhal v. Commissioner, T.C. Memo. 2000-92: The writing requirement does not specify the medium which may be used nor the form the writing must take. Letters which do not show a meeting of the minds between the parties cannot collectively constitute a written separation agreement.
From Azenaro v. Commissioner, T.C. Memo. 1989-224: However, where one spouse assents in writing to a letter proposal of support by the other spouse, a valid written separation agreement has been held to exist.
THE CAUSE OF THE DISPUTE
Alimony, or spousal support, is an above-the-line deduction on the tax return of the paying spouse, and income to the receiving spouse. Section 71 of the tax code lists the requirements for payments to be treated as alimony. One of those requirements is that the instrument under which the alimony is paid must be written. The rules do not specify the form of the written agreement, though in general it should be a clear statement in written form memorializing the terms of support between the parties.
In this case, the taxpayer and his wife divorced in 2004. Under the judgment of dissolution, the taxpayer was to pay spousal support of $1,000 per month from January 1, 2004 through December 31, 2007.
In 2007, when his ex-wife was unemployed, without medical insurance, and having health issues, she made a written request directly to the taxpayer for additional support. In response, the taxpayer began to make monthly payments of $2,300 to her. He did not attempt to have the amount of spousal support required by the judgment of dissolution amended or modified, and he did not supply the court with any letters that he wrote in reply to his ex-wife’s request.
In 2007, the taxpayer made total payments of $27,600 to his ex-wife, and he deducted that amount as alimony on his 2007 federal income tax return.
The IRS disallowed a deduction for the amount in excess of what was called for in the judgment of dissolution, saying the extra payments did not qualify as alimony.
WHAT WOULD YOU DECIDE?
Make your selection, then see “The Court’s Decision” below for a full explanation
THE COURT’S DECISION
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.