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Subject Author Date
Claiming ex-spouse as a dependent Dick Adams 07-02-2008
Posted by Stuart A. Bronstein on July 3, 2008, 3:55 pm
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> I don't know what, if anything appears in Pub 504 before or after
> the quoted passage but payments by one person to another are not
> alimony if they are living in the same household.

Assuming that's correct, just because two people live in the same house
doesn't mean they live in the same house. Remember the [unofficial but
often cited] bedroom rule?

Stu

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Posted by D. Stussy on July 3, 2008, 5:14 pm
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> > Pub 504 is clear as mud on this, especially since the term "spouse" is
> > also used to mean "former spouse" unless otherwise stated. If the
> > divorce is final, can't they still live in the same household and
> > claim/deduct alimony?
> >
>
> No.
>
> > "Exception.
> > 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."
>
> I don't know what, if anything appears in Pub 504 before or after the
> quoted passage but payments by one person to another are not alimony
> if they are living in the same household.

Since when does alimony HAVE to be a payment from one former spouse to
another? All that is required is that it be a payment of spousal support -
for which it could also be paid directly to third parties (e.g. utility
companies, etc.) on behalf of the otherwise receiving former spouse.

IRC 71(b)(1) "[S]uch payment is received by (OR ON BEHALF OF) a spouse under
a divorce or separation instrument," (capitalization added).

A direct payment to a third party for the former spouse's living expenses is
a payment "on behalf of" that former spouse.
(Just like "out of pocket" expenses for participating in charitable events
are deductible as contributions.)

I do agree that 71(b)(1)(C) does require that the former spouses may not be
members of the same household for the amount to be includible by the
recipient and deductible by the payor - but it's still alimony. However,
it's restricted to those legally separated or divorced (a COMPLETED action),
but may not apply to those where the action is merely PENDING with an
interim agreement in place. I think that's what publication 504 is getting
at.

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Posted by D. Stussy on July 3, 2008, 5:00 pm
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> kamlet@panix.com (Arthur Kamlet) wrote:
> >>Client got divorced in December, but remained
> >>in the house. Client's ex-spouse had no income
> >>for 2007 and apparently will agree to anything.
> >>(How come I never find these women?) Client
> >>wants to file HoH and claim is ex-spouse as a
> >>dependent.
> >
> > In order to claim her as his dependent, she must pass the
> > Qualifying Relative tests, including the support test (he
> > provided more than half her support.)
> >
> > And in order to claim HoH he must have a HoH qualifying
> > person. One requirment to be an HoH Qualifying Person
> > is a close blood relationship. Ex-spouse fails this test.
>
> I haven't gone to look at the statute, but is that the case even if
> there's a court order from the divorce requiring that he support her?

Yes. However, there may be implicit alimony here too.

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<< The foregoing was not intended or written to be used, >>
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Posted by Mark Bole on July 2, 2008, 4:17 pm
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Dick Adams wrote:

> Client got divorced in December, but remained
> in the house. Client's ex-spouse had no income
> for 2007 and apparently will agree to anything.

Unfortunately, except in the cases of qualifying-child tie-breaker rules
and signing a joint return (neither of which apply here), her
"agreement" or lack thereof has no bearing on the tax matter. I wonder
if she also agreed to no alimony? The benefit of that to him will
probably dwarf any tax benefit from claiming her as a dependent.


Harlan Lunsford wrote:
> And my take on this is that if you aren't sure about the law, do not
> preparer the return.
> IOW, never prepare a return unless you are willing to represent the
> client.

Right -- just signing it as a paid preparer puts you at risk, whether
you are willing to represent down the road or not.


Arthur Kamlet wrote:
> In order to claim her as his dependent, she must pass the
> Qualifying Relative tests, including the support test (he
> provided more than half her support.)

That's the messy part -- just because she had no income doesn't mean she
didn't provide a significant portion of her own support, especially if
she owns (or owned) half of a house they live in. She might also have
spent money from gifts, loans, or savings to support herself. As
mentioned, Pub 501 has help for this, including a support worksheet.

-Mark Bole

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Posted by Dick Adams on July 3, 2008, 1:30 am
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My mistake. I forgot to note there are two minor
children and they have joint custody and he has an
8333 for them.

Dick

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<< The foregoing was not intended or written to be used, >>
<< nor can it used, for the purpose of avoiding penalties >>
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