Alimony Payments Must Terminate at Death

Article excerpt

IRC section 215(a) says an individual who makes alimony payments may deduct them and the recipient must include them in his or her gross income. Under IRC section 71(b)(1), payments must meet four requirements to be considered alimony:

1. They must be made pursuant to a divorce agreement.

2. The agreement must not specify different tax treatment.

3. The spouses must not be members of the same household.

4. The payor must not be liable to make additional or substitute payments after the payee spouse dies.

Richard Hawley and Jane Gilbert entered into an agreement and order of support that required Hawley to pay biweekly amounts to support Gilbert and their three children. The separation agreement did not specify the allocation of payments between alimony to Gilbert and child support.

On their individual 1993 to 1995 tax returns, Hawley deducted the payments and Gilbert did not include them in her gross income. To avoid being "whipsawed"--having different tax treatments for each party result in its collecting no tax--the IRS inconsistently determined that Hawley could not deduct the payments and that Gilbert must include them in her gross income. Hawley and Gilbert petitioned the Tax Court, challenging the IRS assessments.

The Tax Court consolidated the two cases and held the payments were not alimony, meaning Hawley could not deduct them. He appealed the decision to the Third Circuit Court of Appeals. To again avoid a whipsaw situation where Hawley could deduct the payments but Gilbert would not be required to include them in her income, the IRS also appealed the Gilbert decision.

Result. For the IRS. Hawley and Gilbert met the first three requirements for the payments to be considered alimony. …