Rules of disengagement: navigating the turbulent waters of divorce taxation.

The tax consequences of divorce can be critical. Since it is the unusual divorce attorney who understands the intricacies of federal and California income tax laws, CPAs are well-suited to help clients structure their divorce settlements to be in compliance with state and federal laws.

Beyond compliance, CPAs help clients structure their settlements to pay the least amount of tax and result in the least amount of difficulty in tax return preparation. This involves reviewing their clients' marital settlement agreements for any tax consequences and explaining to them--and to their attorneys--any differences between the actual tax consequences and those stated in the agreement.

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The following is an overview of the most pressing issues CPAs need to know about when delving into the world of divorce taxation.

FILING A JOINT RETURN

If married on the last day of the year, the parties have the option of filing a joint return or married filing separately. There also might be the possibility of one, or both, of the spouses qualifying as head of household. To qualify as such, they must be separated for more than half the year and provide a principal abode for a qualifying child.

Often, two married filing separate returns result in more income tax due than on a joint return. The joint and several liability for the tax (on a joint return) should be considered.

If there is other than a joint return for the year in which separation occurred, care must be taken to determine who reports what income and withholding. Absent a prenuptial agreement to the contrary, earned income is community until separation, reportable fifty-fifty by each spouse, and earned income after separation is the separate income of the spouse who earned it. Keep in mind that self-employment tax is assessed without regard to community-property laws.

For example: Wife earned $70,000 of self-employment income, consisting of $20,000 of community income. Husband would report $10,000 of ordinary income not subject to self-employment (SE) tax and wife would report $60,000 of ordinary income, but $70,000 would be on her SE form.

Also income from a community-property asset is reported fifty-fifty until the asset is awarded to one spouse.

For example: The parties' rental property generated $10,000 of taxable income for the year in which they separated July 1. Their marital settlement agreement was signed March 1 of the following year and the rental property was awarded to husband. The agreement did not state an effective date of the division of the rental property, so they would each report $5,000 of taxable income in the year of separation and would each report half of the taxable income the next year through March 1. Husband would report the balance of the income received after March 1.

If withholding, estimated income tax payments or the overpayment from the prior year applied to this year is going to be claimed by a spouse whose social security number it is not under, be sure to write to the IRS and FTB and have them apportion the taxes between the spouses prior to filing the tax returns. Both spouses should sign these letters of instruction. The FTB address is: Joint Estimate Credit Allocation; M/S F-225; Taxpayer Services Center; Franchise Tax Board; P.O. Box 942840; Sacramento CA 94240-0040.

DATE OF SEPARATION

Generally, the date of separation is the date that earned income ceases to be community [Poe v. Seaborn, 282 U.S. 101 (1930)]. This date is very important and should be confirmed with the client's attorney. Prior to the date of separation, the earned income and withholding would be reported fifty-fifty by each spouse.

MARRIAGE TAX PENALTY & DECREE OF LEGAL SEPARATION

Two single returns often result in less overall tax than a joint return for several reasons. The main reason is that the joint return is considered to be one taxpayer and two single returns are considered two taxpayers, and there are many items in the Internal Revenue Code that have an allowance or a limit per taxpayer. One of the most common examples is the capital loss deduction of $3,000 per taxpayer.

The ability to file a single return is available if the parties are divorced Dec. 31 or if they have obtained a decree of legal separation by Dec. 31. If they have a decree of legal separation, they are considered unmarried for tax purposes and cannot file a joint return. You should ask to see the judgment and not take your clients' word for it.

COORDINATING WITH DIVORCE ATTORNEY

If filing other than a joint return, be certain to ask your client's attorney if there are any separate-property issues. You wouldn't want to report, for example, 50 percent of the taxable income from rental property if it is your client's position that the rental property is his separate property. Rather, you would report 100 percent of the income for the year, which is a tax position consistent with your client's legal position.

If the parties do not agree on the date of separation, the character of income (community or separate), the allocation of tax payments or any other items you need to know to prepare income tax returns (or are refusing to provide tax documents), let your client's attorney know in writing as soon as you discover the problem. The cover letter should refer to an attached list of items, which makes it easy for the attorney to write to opposing counsel and attach your list.

OUT-SPOUSE'S ABILITY TO EXCLUDE GAIN FROM THE SALE OF THE RESIDENCE

When IRC Sec. 121 regarding the exclusion of gain from the sale of one's personal residence went into effect, divorcing couples were considered.

One is deemed to be using a residence as one's residence during any period of time that one's spouse, or former spouse, is granted the use of the home. In other words, if the husband moves out (and even buys a new principal residence) and the wife is granted the use of the former home in the divorce agreement and both parties stay on title and the house sells 10 years later, the husband will be deemed to have lived in the home. And, as long as he hasn't sold a different principal residence within two years, will qualify to exclude $250,000 of gain on the sale of his half of the house.

Obviously, this assumes that the tax law remains the same.

AGREEMENT DOESN'T CONTROL TAX CONSEQUENCES

Generally, it doesn't matter if the marital settlement agreement, minute order or judgment state that something is deductible or taxable, whether someone can file as head of household or that one of the spouses will report the sale of property, etc. What is controlling is the IRC. Child support and alimony are two areas in which we must review the tax rules, not the agreement, for any tax consequences.

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Child Support. There are three ways a payment from one parent to the other can be considered to be child support:

1. The payment is called child support. This is called "fixing" the payment as child support.

2. There is to be a decrease in the amount of family support or spousal support tied to a contingency of a child of the payor parent.

For example: $5,000 per month until Johnny (child of payor) graduates from high school, when the payment will decrease to $3,000. Here, only $3,000 is potentially considered alimony, as the $2,000 is child support for tax purposes and not deductible by payor or taxable to recipient.

3. There is to be a decrease in the amount of family support or spousal support associated with a contingency of a child of the payor parent. This rule is a rebuttable presumption that the amount of the decrease is child support. There are two tests:

Six-month Rule. If there is a decrease in the amount of support within six months of a child of the payor parent turning 18 or 21, the amount of the decrease is presumed to be child support (Temp. Reg. Section 1.71-1T(c) Q & A 18). The law actually says 18, 21 or age of majority; in some states there are three ages to worry about.

For example: $5,000 a month until June 1, 2006, when it decreases to $3,000. Johnny's date of birth is Oct. 27, 1987. Since he will be 18 years 7 months and 5 days old (more than 18 years and 6 months), this is an example of how one could successfully draft around this rule.

Note that it is six months before and after turning 18 and 21 that are the ages to be considered.

24-month Rule. This is called the multiple-reduction rule. If there are two or more reductions at times when the children of the payor parent are not different by more than 24 months, the reduction is presumed to be child support. Here we consider children between the ages of 18 and 24, inclusive.

For example: Alimony is ordered at $6,000 per month, reducing to $4,000 per month Aug. 1, 2006, and reducing to $2,000 per month Feb. 1, 2008. The children's birth dates are July 1, 1983 (Mary) and Nov. 1, 1984 (John). Mary will be 23 years, 1 month old at the first reduction date (Aug. 1, 2006) and John will be 23 years 3 months old at the next reduction date (Feb. 1, 2008). Since these two ages are not different by more than 24 months, the reduction of $4,000 per month (from $6,000 to $2,000) will be presumed to be child support.

Alimony: This is a prime example of the agreement not controlling the tax consequences. "Spousal support" is what is awarded in California. "Alimony" is the number on a tax return. They are often different numbers to the surprise of the court, the attorneys and the parties.

The rules for alimony include all of the following:

* At the time of payment, the payment needs to be pursuant to a written separation agreement or court order [Ali v. Commissioner, T.C. Memo 2004-284 (12/27/04)];

* The payment must be in cash;

* The payment needs to be received. Therefore, a check put in the mail on Dec. 31 becomes alimony in the next calendar year;

* The payment can't be considered "child support" (see above);

* The parties cannot have elected out of alimony treatment, pursuant to IRC Sec. 71 (b)(1)(B);

* The parties do not file a joint return, however, the payor could be filing a joint return with a new spouse;

* If the parties are divorced or have a decree of legal separation, they may not be members of the same household; and

* The liability to pay must terminate at the death of the payee.

The payments have to meet all the above rules to be considered alimony, even if the marital settlement agreement states that the payments are deductible to the payor and taxable to the payee.

ALIMONY RECAPTURE 

If alimony pursuant to a permanent order decreases too quickly by too much, there will be alimony recapture. When there is, the amount of the recapture is included in the payor's income and is an above-the-line deduction to the payee in the same amount.

Alimony pursuant to a permanent order is compared in three calendar years beginning with the first calendar year in which there is alimony pursuant to a permanent order. And the amount of alimony in that first year is only the amount paid pursuant to the permanent order. In other words, payments made pursuant to a temporary order are not considered. If there is recapture it will be in the third year.

The formula compares alimony in Year 1 to that in Year 2, alimony in Year 2 to that in Year 3 and alimony in Year 1 to that in Year 3. A useful quick check is that there is no recapture if Year 2 is greater than or equal to Year 1 minus $7,500 and Year 3 is greater than Year 2 minus $15,000.

The only exceptions are if the decrease is due to death or remarriage or if the order was a percentage of income order and the income decreased.

GETTING STOCK OPTIONS TO THE NON-EMPLOYEE SPOUSE

Nonqualified Stock Options: Revenue Ruling 2004-60 explains how nonqualified stock option income is taxed in a divorce. It sets forth how to divide the community options and how the non-employee spouse can receive a Form 1099, reflecting the income and the income tax withholding under that spouse's social security number. It also explains that the FICA withholding will appear on the employee's W-2.

Incentive Stock Options: Private Letter Ruling 200519011 addresses the division of incentive stock options in a divorce. In essence, the non-employee spouse steps into the shoes of the employee spouse. There is no disqualifying event and all the income tax withholding will be that of the non-employee spouse.

If the employer doesn't handle the division as explained, the non-employee spouse should still report the income and any withholding.

TYPE OF PROCESS

Most people are familiar with the adversarial process for divorce, where each spouse is represented by an attorney and proceed with the expectation of going to court if they don't settle the case.

Mediation, as an alternative, has been the most prevalent form of alternative dispute resolution. In mediation, one attorney acts as a neutral to facilitate an agreement, through a series of meetings with the couple.

A relatively new process to California is collaborative practice. This is where each spouse is represented by an attorney and all four people have signed a contract that indicates that should the process fail, then the two attorneys are out of the case-they cannot continue to represent their client. So, everyone is committed to reaching an agreement and the, "I'll see you in court" threat doesn't exist. The process typically uses the services of neutral experts, and is becoming more and more popular.

CONCLUSION

Since many divorce attorneys don't focus on the tax ramifications of a divorce, opportunities abound for CPAs specializing in divorce taxation. By gaining a deeper understanding of divorce taxation, CPAs can provide a real service to their divorcing clients by helping to structure their settlements to pay the least amount of tax and result in the least amount of difficulty in tax return preparation.

BY BEVERLY BRAUTIGAM, CPA/PFS

Beverly Brautigam, CPA/PFS has recently sold her tax preparation practice. She now concentrates on divorce taxation and investment advisory services as owner of Brautigam & Co. serving the Sacramento region. She is president of the California CPA Education Foundation, for which she teaches Tax Consequences of Divorce. You can reach her at [e-mail].