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Tax 18. Tax Alimony Table of Contents IntroductionSpouse or former spouse. Tax Divorce or separation instrument. Tax Useful Items - You may want to see: General RulesMortgage payments. Tax Taxes and insurance. Tax Other payments to a third party. Tax Instruments Executed After 1984Payments to a third party. Tax Exception. Tax Substitute payments. Tax Specifically designated as child support. Tax Contingency relating to your child. Tax Clearly associated with a contingency. Tax How To Deduct Alimony Paid How To Report Alimony Received Recapture Rule Introduction This chapter discusses the rules that apply if you pay or receive alimony. Tax It covers the following topics. Tax What payments are alimony. Tax What payments are not alimony, such as child support. Tax How to deduct alimony you paid. Tax How to report alimony you received as income. Tax Whether you must recapture the tax benefits of alimony. Tax Recapture means adding back in your income all or part of a deduction you took in a prior year. Tax Alimony is a payment to or for a spouse or former spouse under a divorce or separation instrument. Tax It does not include voluntary payments that are not made under a divorce or separation instrument. Tax Alimony is deductible by the payer and must be included in the spouse's or former spouse's income. Tax Although this chapter is generally written for the payer of the alimony, the recipient can use the information to determine whether an amount received is alimony. Tax To be alimony, a payment must meet certain requirements. Tax Different requirements generally apply to payments under instruments executed after 1984 and to payments under instruments executed before 1985. Tax This chapter discusses the rules for payments under instruments executed after 1984. Tax If you need the rules for payments under pre-1985 instruments, get and keep a copy of the 2004 version of Publication 504. Tax That was the last year the information on pre-1985 instruments was included in Publication 504. Tax Use Table 18-1 in this chapter as a guide to determine whether certain payments are considered alimony. Tax Definitions. Tax The following definitions apply throughout this chapter. Tax Spouse or former spouse. Tax Unless otherwise stated, the term “spouse” includes former spouse. Tax Divorce or separation instrument. Tax The term “divorce or separation instrument” means: A decree of divorce or separate maintenance or a written instrument incident to that decree, A written separation agreement, or A decree or any type of court order requiring a spouse to make payments for the support or maintenance of the other spouse. Tax This includes a temporary decree, an interlocutory (not final) decree, and a decree of alimony pendente lite (while awaiting action on the final decree or agreement). Tax Useful Items - You may want to see: Publication 504 Divorced or Separated Individuals General Rules The following rules apply to alimony regardless of when the divorce or separation instrument was executed. Tax Payments not alimony. Tax Not all payments under a divorce or separation instrument are alimony. Tax Alimony does not include: Child support, Noncash property settlements, Payments that are your spouse's part of community income, as explained under Community Property in Publication 504, Payments to keep up the payer's property, or Use of the payer's property. Tax Payments to a third party. Tax Cash payments, checks, or money orders to a third party on behalf of your spouse under the terms of your divorce or separation instrument can be alimony, if they otherwise qualify. Tax These include payments for your spouse's medical expenses, housing costs (rent, utilities, etc. Tax ), taxes, tuition, etc. Tax The payments are treated as received by your spouse and then paid to the third party. Tax Life insurance premiums. Tax Alimony includes premiums you must pay under your divorce or separation instrument for insurance on your life to the extent your spouse owns the policy. Tax Payments for jointly-owned home. Tax If your divorce or separation instrument states that you must pay expenses for a home owned by you and your spouse, some of your payments may be alimony. Tax Mortgage payments. Tax If you must pay all the mortgage payments (principal and interest) on a jointly-owned home, and they otherwise qualify as alimony, you can deduct one-half of the total payments as alimony. Tax If you itemize deductions and the home is a qualified home, you can claim one-half of the interest in figuring your deductible interest. Tax Your spouse must report one-half of the payments as alimony received. Tax If your spouse itemizes deductions and the home is a qualified home, he or she can claim one-half of the interest on the mortgage in figuring deductible interest. Tax Taxes and insurance. Tax If you must pay all the real estate taxes or insurance on a home held as tenants in common, you can deduct one-half of these payments as alimony. Tax Your spouse must report one-half of these payments as alimony received. Tax If you and your spouse itemize deductions, you can each claim one-half of the real estate taxes and none of the home insurance. Tax If your home is held as tenants by the entirety or joint tenants, none of your payments for taxes or insurance are alimony. Tax But if you itemize deductions, you can claim all of the real estate taxes and none of the home insurance. Tax Other payments to a third party. Tax If you made other third-party payments, see Publication 504 to see whether any part of the payments qualifies as alimony. Tax Instruments Executed After 1984 The following rules for alimony apply to payments under divorce or separation instruments executed after 1984. Tax Exception for instruments executed before 1985. Tax There are two situations where the rules for instruments executed after 1984 apply to instruments executed before 1985. Tax A divorce or separation instrument executed before 1985 and then modified after 1984 to specify that the after-1984 rules will apply. Tax A temporary divorce or separation instrument executed before 1985 and incorporated into, or adopted by, a final decree executed after 1984 that: Changes the amount or period of payment, or Adds or deletes any contingency or condition. Tax For the rules for alimony payments under pre-1985 instruments not meeting these exceptions, get the 2004 version of Publication 504 at www. Tax irs. Tax gov/pub504. Tax Example 1. Tax In November 1984, you and your former spouse executed a written separation agreement. Tax In February 1985, a decree of divorce was substituted for the written separation agreement. Tax The decree of divorce did not change the terms for the alimony you pay your former spouse. Tax The decree of divorce is treated as executed before 1985. Tax Alimony payments under this decree are not subject to the rules for payments under instruments executed after 1984. Tax Example 2. Tax Assume the same facts as in Example 1 except that the decree of divorce changed the amount of the alimony. Tax In this example, the decree of divorce is not treated as executed before 1985. Tax The alimony payments are subject to the rules for payments under instruments executed after 1984. Tax Alimony requirements. Tax A payment to or for a spouse under a divorce or separation instrument is alimony if the spouses do not file a joint return with each other and all the following requirements are met. Tax The payment is in cash. Tax The instrument does not designate the payment as not alimony. Tax Spouses legally separated under a decree of divorce or separate maintenance are not members of the same household. Tax There is no liability to make any payment (in cash or property) after the death of the recipient spouse. Tax The payment is not treated as child support. Tax Each of these requirements is discussed below. Tax Cash payment requirement. Tax Only cash payments, including checks and money orders, qualify as alimony. Tax The following do not qualify as alimony. Tax Transfers of services or property (including a debt instrument of a third party or an annuity contract). Tax Execution of a debt instrument by the payer. Tax The use of the payer's property. Tax Payments to a third party. Tax Cash payments to a third party under the terms of your divorce or separation instrument can qualify as cash payments to your spouse. Tax See Payments to a third party under General Rules, earlier. Tax Also, cash payments made to a third party at the written request of your spouse may qualify as alimony if all the following requirements are met. Tax The payments are in lieu of payments of alimony directly to your spouse. Tax The written request states that both spouses intend the payments to be treated as alimony. Tax You receive the written request from your spouse before you file your return for the year you made the payments. Tax Payments designated as not alimony. Tax You and your spouse can designate that otherwise qualifying payments are not alimony. Tax You do this by including a provision in your divorce or separation instrument that states the payments are not deductible as alimony by you and are excludable from your spouse's income. Tax For this purpose, any instrument (written statement) signed by both of you that makes this designation and that refers to a previous written separation agreement is treated as a written separation agreement (and therefore a divorce or separation instrument). Tax If you are subject to temporary support orders, the designation must be made in the original or a later temporary support order. Tax Your spouse can exclude the payments from income only if he or she attaches a copy of the instrument designating them as not alimony to his or her return. Tax The copy must be attached each year the designation applies. Tax Spouses cannot be members of the same household. Tax Payments to your spouse while you are members of the same household are not alimony if you are legally separated under a decree of divorce or separate maintenance. Tax A home you formerly shared is considered one household, even if you physically separate yourselves in the home. Tax You are not treated as members of the same household if one of you is preparing to leave the household and does leave no later than 1 month after the date of the payment. Tax Exception. Tax If you are not legally separated under a decree of divorce or separate maintenance, a payment under a written separation agreement, support decree, or other court order may qualify as alimony even if you are members of the same household when the payment is made. Tax Table 18-1. Tax Alimony Requirements (Instruments Executed After 1984) Payments ARE alimony if all of the following are true: Payments are NOT alimony if any of the following are true: Payments are required by a divorce or separation instrument. Tax Payments are not required by a divorce or separation instrument. Tax Payer and recipient spouse do not file a joint return with each other. Tax Payer and recipient spouse file a joint return with each other. Tax Payment is in cash (including checks or money orders). Tax Payment is: Not in cash, A noncash property settlement, Spouse's part of community income, or To keep up the payer's property. Tax Payment is not designated in the instrument as not alimony. Tax Payment is designated in the instrument as not alimony. Tax Spouses legally separated under a decree of divorce or separate maintenance are not members of the same household. Tax Spouses legally separated under a decree of divorce or separate maintenance are members of the same household. Tax Payments are not required after death of the recipient spouse. Tax Payments are required after death of the recipient spouse. Tax Payment is not treated as child support. Tax Payment is treated as child support. Tax These payments are deductible by the payer and includible in income by the recipient. Tax These payments are neither deductible by the payer nor includible in income by the recipient. Tax Liability for payments after death of recipient spouse. Tax If any part of payments you make must continue to be made for any period after your spouse's death, that part of your payments is not alimony, whether made before or after the death. Tax If all of the payments would continue, then none of the payments made before or after the death are alimony. Tax The divorce or separation instrument does not have to expressly state that the payments cease upon the death of your spouse if, for example, the liability for continued payments would end under state law. Tax Example. Tax You must pay your former spouse $10,000 in cash each year for 10 years. Tax Your divorce decree states that the payments will end upon your former spouse's death. Tax You must also pay your former spouse or your former spouse's estate $20,000 in cash each year for 10 years. Tax The death of your spouse would not terminate these payments under state law. Tax The $10,000 annual payments may qualify as alimony. Tax The $20,000 annual payments that do not end upon your former spouse's death are not alimony. Tax Substitute payments. Tax If you must make any payments in cash or property after your spouse's death as a substitute for continuing otherwise qualifying payments before the death, the otherwise qualifying payments are not alimony. Tax To the extent that your payments begin, accelerate, or increase because of the death of your spouse, otherwise qualifying payments you made may be treated as payments that were not alimony. Tax Whether or not such payments will be treated as not alimony depends on all the facts and circumstances. Tax Example 1. Tax Under your divorce decree, you must pay your former spouse $30,000 annually. Tax The payments will stop at the end of 6 years or upon your former spouse's death, if earlier. Tax Your former spouse has custody of your minor children. Tax The decree provides that if any child is still a minor at your spouse's death, you must pay $10,000 annually to a trust until the youngest child reaches the age of majority. Tax The trust income and corpus (principal) are to be used for your children's benefit. Tax These facts indicate that the payments to be made after your former spouse's death are a substitute for $10,000 of the $30,000 annual payments. Tax Of each of the $30,000 annual payments, $10,000 is not alimony. Tax Example 2. Tax Under your divorce decree, you must pay your former spouse $30,000 annually. Tax The payments will stop at the end of 15 years or upon your former spouse's death, if earlier. Tax The decree provides that if your former spouse dies before the end of the 15-year period, you must pay the estate the difference between $450,000 ($30,000 × 15) and the total amount paid up to that time. Tax For example, if your spouse dies at the end of the tenth year, you must pay the estate $150,000 ($450,000 − $300,000). Tax These facts indicate that the lump-sum payment to be made after your former spouse's death is a substitute for the full amount of the $30,000 annual payments. Tax None of the annual payments are alimony. Tax The result would be the same if the payment required at death were to be discounted by an appropriate interest factor to account for the prepayment. Tax Child support. Tax A payment that is specifically designated as child support or treated as specifically designated as child support under your divorce or separation instrument is not alimony. Tax The amount of child support may vary over time. Tax Child support payments are not deductible by the payer and are not taxable to the recipient. Tax Specifically designated as child support. Tax A payment will be treated as specifically designated as child support to the extent that the payment is reduced either: On the happening of a contingency relating to your child, or At a time that can be clearly associated with the contingency. Tax A payment may be treated as specifically designated as child support even if other separate payments are specifically designated as child support. Tax Contingency relating to your child. Tax A contingency relates to your child if it depends on any event relating to that child. Tax It does not matter whether the event is certain or likely to occur. Tax Events relating to your child include the child's: Becoming employed, Dying, Leaving the household, Leaving school, Marrying, or Reaching a specified age or income level. Tax Clearly associated with a contingency. Tax Payments that would otherwise qualify as alimony are presumed to be reduced at a time clearly associated with the happening of a contingency relating to your child only in the following situations. Tax The payments are to be reduced not more than 6 months before or after the date the child will reach 18, 21, or local age of majority. Tax The payments are to be reduced on two or more occasions that occur not more than 1 year before or after a different one of your children reaches a certain age from 18 to 24. Tax This certain age must be the same for each child, but need not be a whole number of years. Tax In all other situations, reductions in payments are not treated as clearly associated with the happening of a contingency relating to your child. Tax Either you or the IRS can overcome the presumption in the two situations above. Tax This is done by showing that the time at which the payments are to be reduced was determined independently of any contingencies relating to your children. Tax For example, if you can show that the period of alimony payments is customary in the local jurisdiction, such as a period equal to one-half of the duration of the marriage, you can overcome the presumption and may be able to treat the amount as alimony. Tax How To Deduct Alimony Paid You can deduct alimony you paid, whether or not you itemize deductions on your return. Tax You must file Form 1040. Tax You cannot use Form 1040A or Form 1040EZ. Tax Enter the amount of alimony you paid on Form 1040, line 31a. Tax In the space provided on line 31b, enter your spouse's social security number (SSN) or individual taxpayer identification number (ITIN). Tax If you paid alimony to more than one person, enter the SSN or ITIN of one of the recipients. Tax Show the SSN or ITIN and amount paid to each other recipient on an attached statement. Tax Enter your total payments on line 31a. Tax You must provide your spouse's SSN or ITIN. Tax If you do not, you may have to pay a $50 penalty and your deduction may be disallowed. Tax For more information on SSNs and ITINs, see Social Security Number (SSN) in chapter 1. Tax How To Report Alimony Received Report alimony you received as income on Form 1040, line 11. Tax You cannot use Form 1040A or Form 1040EZ. Tax You must give the person who paid the alimony your SSN or ITIN. Tax If you do not, you may have to pay a $50 penalty. Tax Recapture Rule If your alimony payments decrease or end during the first 3 calendar years, you may be subject to the recapture rule. Tax If you are subject to this rule, you have to include in income in the third year part of the alimony payments you previously deducted. Tax Your spouse can deduct in the third year part of the alimony payments he or she previously included in income. Tax The 3-year period starts with the first calendar year you make a payment qualifying as alimony under a decree of divorce or separate maintenance or a written separation agreement. Tax Do not include any time in which payments were being made under temporary support orders. Tax The second and third years are the next 2 calendar years, whether or not payments are made during those years. Tax The reasons for a reduction or end of alimony payments that can require a recapture include: A change in your divorce or separation instrument, A failure to make timely payments, A reduction in your ability to provide support, or A reduction in your spouse's support needs. Tax When to apply the recapture rule. Tax You are subject to the recapture rule in the third year if the alimony you pay in the third year decreases by more than $15,000 from the second year or the alimony you pay in the second and third years decreases significantly from the alimony you pay in the first year. Tax When you figure a decrease in alimony, do not include the following amounts. Tax Payments made under a temporary support order. Tax Payments required over a period of at least 3 calendar years that vary because they are a fixed part of your income from a business or property, or from compensation for employment or self-employment. Tax Payments that decrease because of the death of either spouse or the remarriage of the spouse receiving the payments before the end of the third year. Tax Figuring the recapture. Tax You can use Worksheet 1 in Publication 504 to figure recaptured alimony. Tax Including the recapture in income. Tax If you must include a recapture amount in income, show it on Form 1040, line 11 (“Alimony received”). Tax Cross out “received” and enter “recapture. Tax ” On the dotted line next to the amount, enter your spouse's last name and SSN or ITIN. Tax Deducting the recapture. Tax If you can deduct a recapture amount, show it on Form 1040, line 31a (“Alimony paid”). Tax Cross out “paid” and enter “recapture. Tax ” In the space provided, enter your spouse's SSN or ITIN. Tax Prev Up Next Home More Online Publications
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Tax 14. Tax Penalties and Interest Table of Contents Penalties and interest may result from any of the following acts. Tax Failing to collect and pay over tax as the collecting agent (see Trust fund recovery penalty, later). Tax Failing to keep adequate records. Tax Failing to file returns. Tax Failing to pay taxes. Tax Filing returns late. Tax Filing false or fraudulent returns. Tax Paying taxes late. Tax Failing to make deposits. Tax Depositing taxes late. Tax Making false statements relating to tax. Tax Failing to register. Tax Misrepresenting that tax is excluded from the price of an article. Tax Failure to register. Tax The penalty for failure to register if you are required to register, unless due to reasonable cause, is $10,000 for the initial failure, and then $1,000 each day thereafter you fail to register. Tax Claims. Tax There are criminal penalties for false or fraudulent claims. Tax In addition, any person who files a refund claim, discussed earlier, for an excessive amount (without reasonable cause) may have to pay a penalty. Tax An excessive amount is the amount claimed that is more than the allowable amount. Tax The penalty is the greater of two times the excessive amount or $10. Tax Trust fund recovery penalty. Tax If you provide taxable communications, air transportation services, or indoor tanning services, you have to collect excise taxes (as discussed earlier) from those persons who pay you for those services. Tax You must pay over these taxes to the U. Tax S. Tax Government. Tax If you willfully fail to collect or pay over these taxes, or if you evade or defeat them in any way, the trust fund recovery penalty may apply. Tax Willfully means voluntarily, consciously, and intentionally. Tax The trust fund recovery penalty equals 100% of the taxes not collected or not paid over to the U. Tax S. Tax Government. Tax The trust fund recovery penalty may be imposed on any person responsible for collecting, accounting for, and paying over these taxes. Tax If this person knows that these required actions are not taking place for whatever reason, the person is acting willfully. Tax Paying other expenses of the business instead of paying the taxes is willful behavior. Tax A responsible person can be an officer or employee of a corporation, a partner or employee of a partnership, or any other person who had responsibility for certain aspects of the business and financial affairs of the employer (or business). Tax This may include accountants, trustees in bankruptcy, members of a board, banks, insurance companies, or sureties. Tax The responsible person could even be another corporation—in other words, anyone who has the duty and the ability to direct, account for, or pay over the money. Tax Having signature power on the business checking account could be a significant factor in determining responsibility. Tax Prev Up Next Home More Online Publications