By: Martin M. Shenkman, CPA, MBA, JD
Many people think you must have a legally enforceable obligation to pay alimony in order to claim a tax deduction. This would mean that the court ordered payments to be made to one's ex-wife, and in addition, that the payments be included in the ex-wife's income. But, what if it specified that the payments were not a legally actionable duty of the ex-husband? The key issue was whether this provision, which made the payments not legally enforceable, also removed the payor's tax deduction. One may claim a deduction for alimony payments that meet the Code Section 215 requirements. These include that the payments must end on the death of the payee, be made under a divorce or separation agreement, not be specified as being not taxable or non-deductible, are made to a legally separated spouse who is not part of the same household as the payor, etc. The IRS argued that since the payments were not made under a legally enforceable duty they could not be deducted as alimony. In Webb, TC Summary Opinion 2007-91 (not a binding precedent for other taxpayers) the court held that Code Section 71 did not require that the payments be made under a legally enforceable agreement.
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