Tag Archives: child support

But We Agreed, It Was Alimony – Part 3

Having payments structured as alimony can be an effective tax planning tool. Why? Because alimony is deductible by the payor (typically the higher earning spouse) and taxable to the recipient; the former family unit can reduce, often significantly, its overall tax burden. As we have been exploring in this blog series, sometimes payments the parties identified as alimony turn out to be something else…

The CPA preparing Pat’s tax returns just called to say that $96,000 of the payments made under the agreement will be presumed as child support by the IRS. Pat is dumbfounded. The payments were made according to the separation agreement; they were made in cash to the former spouse. All alimony and child support payments have been made on time. The agreement indicated that the payments were to be alimony and the parties expected that they would be deductible by Pat and taxed to Jamie.

How did this happen?

As required by the separation agreement, Pat paid Jamie $6,000 per month for three years until Taylor turned 18, then paid $4,000 per month for one year until Avery turned 18, at which time the payments were reduced to $3,500 per month.

Under these circumstances, the rebuttable presumption is that the payments in excess of $3,500 per month are deemed child support.

Certain spousal support payments (alimony) are deemed to be child support regardless of how they are described in a divorce decree or separation agreement. When a written instrument calls for a reduction in payments as a result of a contingency relating to a child, those payments will be treated as child support for income tax purposes regardless of the description in the written instrument. Examples of contingencies related to a child include the child attaining a specified age, marrying, dying, leaving school, or a similar contingency.

Careful planning may have avoided these consequences.

For more information regarding Aronson’s Financial Advisory Services practice and the forensic accounting and litigation support services we provide, click here or call Sal Ambrosino at 301.231.6272.

 

But We Agreed, It Was Alimony!

Often divorce decrees or separation agreements describe the nature and amount of payments and transfers to be made between divorcing individuals. Having payments structured as alimony can be an effective tax planning tool in this process. Why? Because it is deductible by the payer, which is typically the higher earning spouse and taxable to the recipient, thus reducing the former family units overall tax burden. However, sometimes payments the parties identified as alimony turn out to be something else. This blog series looks at some of the ways in which alimony can be reclassified.

First, the basics. In order to be considered alimony, payments must:

  • be made in cash;
  • be pursuant to a written divorce or separation instrument (and that instrument cannot specifically state that the payments are not alimony);
  • be made to a former spouse or on behalf of a former spouse (that former spouse must file a separate tax return and, if the divorce is final, the former spouses may not be living together);
  • terminate at the death of the recipient; and,
  • must not be identified as child support in the instrument or, deemed to be child support.

In general, if you follow the formula: have the terms in writing, be sure that the writing does not say the payments are not alimony, terminate upon the recipients death, and make the payments to or on behalf of a former spouse then in most cases the payments should qualify as alimony on the tax returns.

But what happens if the alimony payments change over time? What if the payments began prior to the creation of the written instrument? What happens if the payments are combined with child support or property transfers? Or, if the payer is behind in child support?

All of these circumstances may affect the characterization of the payments. In the following weeks we’ll look at each of these scenarios to determine how they might impact your situation.

For information on how Aronson can help you find the answers to your tax questions related to divorce, or for information regarding the forensic litigation support and valuation services provided by Aronson’s Financial Advisory Services Group, click here or call Sal Ambrosino at 301.231.6272.

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