Alimony - Frequently Asked Questions

Article Source: http://www.ftb.ca.gov/individuals/faq/alimony.shtml

1. What is alimony? Money paid from one spouse to another for day-to-day support of the spouse with fewer financial resources is alimony (sometimes also referred to as "spousal support"). The law allows courts to award "alimony" or spousal support to one of the former spouses when a married couple divorces.
2. What are other examples of alimony payments? Payments made to a third party are considered alimony. Indirect alimony may include cash payments to a third party to provide a residence for a former spouse (i.e., rent, mortgage, utilities, etc.) medical cost payments or other such expenses incurred by the recipient.
3. What types of payments do NOT qualify as alimony?

• Property settlement payments, even if required by the divorce decree or other written instrument or agreement.
• Retirement benefits that the other spouse is entitled to receive are actually from community property.
• Any voluntary payments made before they are required by a divorce decree or agreement.
• Child support payments.

4. Can I deduct alimony paid? The law requires alimony payments to be reported as income by the recipient. The person who pays alimony may take a deduction for these payments. Alimony payments you make are deductible if all of the following requirements are met:

• You pay in cash, checks or money orders.
• The divorce or separation instrument does not say that the payment is NOT alimony.
• You and your former spouse are not members of the same household when you make the payment.
• You have no liability to make any payment after the death of your spouse or former spouse.
• Your payment is not treated as child support.

Generally, alimony deductions appear on line 31 of the federal Form 1040.
5. Are alimony payments considered taxable income? Alimony and similar payments from your spouse or former spouse are taxable to you in the year received. Taxpayers report alimony income on line 11 of the federal Form 1040, and this figure carries through to the California return.
6. I get family support from my former spouse. Is that considered taxable income? If the divorce decree or separation instrument provides for "family support" but no amount of the family support is designated as child support, then the entire payment is considered alimony.
7. Can I deduct child support payments? No. Child support is not considered alimony. If your divorce decree or other written instrument or agreement calls for alimony and child support, and you pay less than the total required, the payments apply first to child support. Any remaining amount is then considered alimony.
8. How can I distinguish alimony from child support? Distinguishing whether payments are alimony or child support may be difficult. Consult a tax advisor if you are uncertain. Payments that are fixed, in terms of an amount of money or a part of a payment as payable for the support of the payor's children are not alimony but rather non-deductible child support.
9. What are common mistakes made by taxpayers? Many taxpayers mistakenly consider all payments made to their ex-spouses as deductible alimony payments. For example, taxpayers frequently include non-deductible child support payments as alimony deductions. On the other hand, many alimony recipients do not consider the payments from their ex-spouses as taxable income, and fail to report it. Some recipients make the common mistake of not reporting income designated as "family support" by the divorce decree. This type of support is considered alimony income in most cases.
10. Can Registered Domestic Partners (RDPs) claim alimony payments on their federal and state returns? IRC section 71 defines "alimony" or "separate maintenance payment" as any payment in cash if such payment is received by (or on behalf of) a spouse under a divorce or separation agreement. Because federal law specifically identifies alimony as a payment to a spouse under a divorce and a separation agreement, for federal purposes IRC section 71 may not apply to RDPs. How the IRS treats alimony payments between RDPs remains unclear, therefore please contact the IRS, a federal tax practitioner, or competent counsel for the proper treatment of this issue on your federal returns.
California treats an RDP the same as a spouse. Consequently, we treat alimony payments between RDPs the same as alimony payments between spouses.
11. Why did FTB contact me? We contacted you because you claimed an alimony deduction as a payor or you under reported income from alimony payments as a recipient.
12. Will I be assessed any penalties if I owe additional taxes? The law allows us to assess the Accuracy-Related Penalty on the portion of any understatement of tax that should be shown on the return (CR&TC §19164). The penalty is equal to 20% of the portion of the underpayment caused by one or more of the following:

• Negligence or disregard of rules or regulations.
• Substantial understatement of income tax.
• Substantial valuation misstatement.

The law provides relief provisions or exceptions for each of these situations. We consider the relief provisions for each situation prior to assessing the penalty. We consider three common defenses (relief provisions) by taxpayers to avoid assessment of the penalty, depending upon the basis of the penalty. List of defenses are:

1. Substantial authority – Substantial Authority exists for the tax treatment of an item on the return.
2. Adequate disclosure – The original return contains Adequate Disclosure of the transaction and a reasonable basis for the position taken exists.
3. Reasonable Cause – Treasury Regulations §1.6664-4 also states that no penalty shall be imposed under IRC §6662 with respect to any portion of an understatement if the taxpayer shows that there was a reasonable cause for such portion and that the taxpayer acted in good faith with respect to such portion. We determine whether a taxpayer acted with reasonable cause and in good faith on a case–by–case basis, taking into account all pertinent facts and circumstances.

Substantial understatement of income tax exists if the amount of the understatement for the taxable year exceeds the greater of: (a) 10% of the tax required to be shown on the return for the taxable year, or (b) $5,000.
If you file the original return late, you also owe a late filing penalty.
13. What happens if I move out of California? A nonresident who receives alimony does not owe tax to California even if a California resident pays the alimony and claims a deduction for the payment.
14. Where can I get additional tax information?

Website:	www.ftb.ca.gov
Phone:	(800) 852-5711

Or, contact your tax preparer.
Assistance for persons with disabilities: We comply with the Americans with Disabilities Act. Persons with hearing or speech impairments please call TTY/TDD (800) 822-6268.
15. How can I request tax forms and publications?

Website:	www.ftb.ca.gov
Phone:	(800) 338-0505
Mail:	Tax Forms Request Unit MS D120 Franchise Tax Board PO Box 307 Rancho Cordova, CA 95741-0307

16. What will happen if I do not respond to the letter from FTB? We will revise your tax liability to include alimony income based on information available to us. Interest will also be assessed. In addition, you may be subject to the Accuracy-Related Penalty at 20% of the underpayment of tax (CR&TC §19164).