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Tax Aspects of Divorce and Separation.
ALM Media, LLC, May 2013, Pages: 1066
Tax Aspects of Divorce and Separation shows you how to gather and analyze financial data and ensure that your clients receive the most advantageous tax treatment possible. It discusses: valuation of property, including: business enterprises; deductibility of alimony and payments made to a third party; the child care and earned income credits; applicable provisions of the Internal Revenue Code and how to protest federal tax obligations; the relationship between the Internal Revenue Code and various state property systems; estate and gift tax issues; and prenuptial agreements. Tax Aspects of Divorce and Separation also examines the ramifications of legislation, including the Economic Growth and Tax Relief Reconciliation Act of 2001 (EGTRRA), the Jobs and Growth Tax Relief Reconciliation Act of 2003 (JGTRRA), the Working Families Tax Relief Act of 2004 (WFTRA), the American Job Creation Act of 2004, the Gulf Opportunity Zone Act of 2005, the Tax Increase Prevention and Reconciliation Act of 2005 (TIPRA), the Tax Increase Prevention Act of 2007, and the Tax Extenders and Alternative Minimum Tax Relief Act of 2008 (TEAMTRA).
The book includes numerous sample forms, agreements and checklists, complete with detailed explanations, including: questionnaires for determining the financial condition of both spouses; a net worth discovery form; checklists for personal and corporate transactions; a model prenuptial agreement; a sample separation agreement; and IRS forms and publications.
CHAPTER 1
The Role of Tax Law
- 1.01 Introduction
- 1.02 The History of Marital Taxation
- 1.03 The Role of Government Branches in the Taxation Process
[1] The Legislative Process
[2] Administering the Tax Laws
[3] Judicial Review; Arbitration
- 1.04 The Return
[1] Form 1040 and Form 1040A
[2] Estimated Tax Return
- 1.05 Computing the Tax
- 1.06 The Basic Matrimonial Sections
[1] Relationship Between Sections 71 and 215
[2] Estate and Gift Taxes
[3] The Significance of Changes in the Tax Law
- 1.07 Researching Tax Questions
[1] The Internal Revenue Code
[2] Status and Weight Accorded to Treasury Regulations and Revenue Rulings
[3] Case Decisions and Their Weight
[4] Sources for Research
[5] Reliance on Authority
CHAPTER 2
The Marriage
- 2.01 Introduction
- 2.02 The Legal Significance of Being Married
[1] Rights and Liabilities of Husband and Wife
[2] Children
[3] Adoption
[4] Uniform Interstate Family Support Act
[5] Stepchildren: Rights and Responsibilities
[6] Support and Education of Children Born Out of Wedlock and Proceedings to Establish Paternity
- 2.03 Tax Implications
[1] The Marriage Penalty
[2] Availability of the Joint Return
[3] Amending Returns
[4] Child and Dependent Care Credit
CHAPTER 3
The Pseudo-Marriage
- 3.01 Overview
- 3.02 Common Law Marriage
- 3.03 Cohabitation: The Theory Behind Palimony
[1] The Old Rule—The Meretricious Spouse Rule
[2] The New Rules
[3] Same Sex Relationships
[4] Public Policy Interests
[5] Domestic Partnerships and Civil Unions
- 3.04 Tax Consequences
CHAPTER 4
Dissolution of a Marriage
- 4.01 Separation
[1] By Agreement
[2] By Decree
[3] Recognition of Separation for Purposes of Tax Law
- 4.02 Annulment
[1] Void Marriages
[2] Tax Effects of an Annulment of a Void Marriage
[3] Voidable Marriages
[4] Legitimacy of Issue
- 4.03 Divorce
- 4.04 Child Custody
- 4.05 Special Considerations
[1] Bigamy: Tax Implications
[2] Uniform Child Custody Jurisdiction Act
CHAPTER 5
Alimony and Maintenance
- 5.01 In General
- 5.02 Alimony Under the Internal Revenue Code Prior to January 1, 1985
[1] Formal Arrangements
[2] Periodic Payments
[3] Support
- 5.03 Alimony Under the Internal Revenue Code After December 31, 1984
[1] General Rules
[2] Three Year and Recapture Rules
[3] Alimony Trusts
[4] Other Payments Attributable to Property Transferred
[5] Payment-in-Kind (Non-Cash) and Payments to Third Parties
- 5.04 Specific Types of Maintenance (“In Kind”)
[1] Life Insurance
[2] Annuities
[3] Trusts
[4] Medical Expenses
[5] Education
[6] Payments Made in Connection with the Marital Residence
[7] Gifts
[8] Assignment of Future Income
- 5.05 Arrears, Modifications, Overpayments and Repayments
[1] Arrears and Modifications
[2] Overpayment of Alimony
[3] Repayment
[4] Prepayments of Alimony
- 5.06 Attorney's Fees
- 5.07 Post-Death Payments
[1] In General
[2] Decedent's Estate
[3] Claims Against the Estate and Estate Tax Deductions
[4] Recipient's Income
[5] Payments Other Than by Decedent's Estate
- 5.08 Tax Withholding by Payer Spouse Required
CHAPTER 5A
Child Support and Dependency Exemption
- 5A.01 Child Support
[1] Tax Years Before 1985
[2] Tax Years After 1984
[3] Misallocated Child Support
[4] Unpaid Child Support Is Not Deductible
- 5A.02 Dependency Exemption
[1] Dependency Exemption Generally
[2] The Support Test
[3] The Relationship Test
[4] The Dependent's Gross Income Test
[5] Joint Return Filed By Married Dependent
[6] The Citizenship or Residency Test
[7] Non-Related Persons
[8] Missing Children
- 5A.03 Amount of Dependent Exemption
- 5A.04 Other Child-Related Tax Benefits
[1] Child Care Credit
[2] Medical Expenses
[3] Exemption from IRS Levy for Child Support
[4] Head of Household
[5] Earned Income Credit
[6] Miscellaneous Local Tax Benefits
[7] Child Tax Credit and Additional Child Tax Credit
[8] Tax Benefits for Education
- 5A.05 Tax Refund Intercept Program
CHAPTER 5B
Property Settlements
- 5B.01 Alimony vs. Property Settlement
- 5B.02 Property Settlements Prior to the 1984 Act
[1] Division of Marital Assets in Accordance with Underlying Ownership
[2] Community Property States and States with “Similar” Property Laws
[3] Treatment of Recipient
[4] Basis
- 5B.03 Property Settlements Under the 1984 Act
[1] Modified Agreements and the Applicability of Section 1041
[2] Electing into the 1984 Amendments
[3] How Section 1041 Works
[4] Pre-Marital Transfers
[5] Applying Section 1041 Outside of Divorce Situations
[6] Section 1041 and Transfers to Third Parties
[7] Reporting Transfers to the IRS
[8] State and Local Taxation
[9] Rights of Transferor Spouse's Creditors Upon Transfer
[10] Rights of First Refusal
- 5B.04 Settlements Involving the Marital Residence
- 5B.05 Transfers Involving Closely Held Businesses
[1] Corporations
[2] Partnerships
[3] Sole Proprietorship
[4] Allocation of Income and Expenses
- 5B.06 Pension, Retirement Plan Assets, and IRA Withdrawals
- 5B.07 The Retirement Equity Act of 1984
[1] Drafting Concerns: Pension Failure
[2] The Joint and Survivor Annuity and Insurance
[3] Non-Qualified Withdrawals
- 5B.08 Income Tax Effects of Divorce Court Decisions
[1] Tax Consequences Caused by a Court Due to Equitable Distribution
[2] Proof of Income Tax Effects
[3] Taxability of Interest on Future Payouts
[4] Allocation of Net Operating Losses
[5] Passive Losses
CHAPTER 5C
The Tax Return
- 5C.01 Filing Status
[1] Rates and the Personal Status of the Taxpayer
[2] Who Must File a Return
[3] Marital Status
[4] Filing a Joint Return
[5] The Spouses' Joint Rights to Refunds
- 5C.02 Shifting Liabilities Between Married Persons or Formerly Married Persons on Tax Returns
[1] Innocent Spouse Rule, Separation of Liability Rule, and Equitable Relief Rule
[2] Amending Returns
[3] Filing Status Alternatives
[4] Federal Tax Obligations vs. Homestead Rights Under State Law
[5] Community Property
[6] Effect of Bankruptcy of One Spouse on Liability of the Other
- 5C.03 Grossly Erroneous Items
[1] Generally
[2] Delays in Filing or Paying—Section 6651
[3] Accuracy Related Penalties
[4] Fraud
[5] Miscellaneous Penalty Related Issues
CHAPTER 6
Use of Tax Information
- 6.01 Negotiations
[1] In General
[2] Dealing with Internal Revenue Service
- 6.02 Court Presentation
- 6.03 Valuation
- 6.04 Selection of Tax Consequences
CHAPTER 7
Asset Analysis
- 7.01 Tools for Discovery
[1] Organizing a Program of Discovery
[2] The Net Worth Statement
[3] Tax Returns
[4] Using Experts
[5] Other Aids to Discovery
[6] Sample Financial Statement Questionnaires
- 7.02 Asset Analysis Through the Tax Return
[1] Joint Returns
[2] Separate Returns
[3] Partnership Returns
[4] Corporate Returns
- 7.03 Identifying the Marital Res
[1] In General
[2] Employee and Executive Compensation: Plans and Perks
[3] The Closely Held Corporation
[4] Professional Degrees
[5] Value of Homemaker's Services
CHAPTER 8
Relationship Between the Internal Revenue Code and Various State Property Systems
- 8.01 Identification
[1] Joint Tenancy
[2] Tenancy in Common
[3] Community Property
[4] Impact of Federal Law on State Law with Respect to Taxation
[5] Impact of State Law on Federal Law with Respect to Taxation
CHAPTER 9
Estate and Gift Tax Implications
- 9.01 Introduction
- 9.02 Federal Estate and Gift Tax
[1] Unified Credit
[2] Tax Rates
- 9.03 The Taxable Estate on Death
- 9.04 Deductions from the Estate and Gift Taxes for Property Transfers
[1] Marital Deduction
[2] Terminable Interests
[3] Non-Citizens
[4] Claims Against the Estate
- 9.05 Gift Tax Considerations
[1] Statutory Protection of Transfers Under Separation Agreements
[2] Annual Exclusion
[3] Tuition and Medical Care
- 9.06 Trusts
[1] General Considerations
[2] Insurance Trusts
- 9.07 Generation-Skipping Tax
CHAPTER 10
The Prenuptial Agreement in Equitable Distribution States
- 10.01 General Analysis
[1] Introduction
[2] Purpose of an Agreement
[3] The Statute of Frauds
[4] Drafting
[5] Attacks Against the Agreement: Laches and Estoppel
[6] Modification or Revocation of Agreements
[7] Tax Effect
[8] Miscellaneous
- 10.02 Use of Trusts in Prenuptial Agreements
[1] Using Life Insurance Directly
[2] Life Insurance Trusts: General Concepts
[3] Marital Residence
- 10.03 Protecting Assets in the Second Marriage Without a Prenuptial Agreement
[1] Unified Credit Trust
[2] Marital Bequest with Retention of Control
[3] Trusts with Discretion as to Income Payments to Survivor
[4] Trust Where Income Must Be Paid to Survivor
[5] Qualified Terminable Interest Property (QTIP) Trust
- 10.04 Charitable Bequests
[1] Annuity Trust or Unitrust
[2] QTIP Trust with Charitable Beneficiary
- 10.05 Model Prenuptial Agreements
CHAPTER 11
A Tax Planned Sample Separation Agreement
- 11.01 Introduction
- 11.02 Sample Separation Agreement with Commentary
CHAPTER 12
Miscellaneous Tax Aspects
- 12.01 Constructive Receipt
- 12.02 Sale of Jointly Owned Real Estate
[1] Exclusion of Gain from Sale of Principal Residence
[2] Rules Prior to May 7, 1997
- 12.03 Bankruptcy Considerations
[1] Filing Issues
[2] Potential Difficulties Arising from Debt
CHAPTER 13
Concluding Remarks
- 13.01 In General
- 13.02 The Matrimonial Practitioner
Appendix
Table of Abbreviations
Index
Robert S. Taft
Mr. Taft (deceased) was a partner in the New York firm of Certilman, Balin, Adler & Hyman, LLP.
Leonard G. Florescue
Leonard G. Florescue is Of Counsel to Chamberlain D Amanda in its Rochester, New York offices. He concentrates his practice in the area of complex matrimonial matters, particularly involving appellate practice, tax issues as they relate to matrimonial law, and prenuptial agreements. He represents celebrity clients, partners in large law and accounting firms and executives of major corporations.
Mr. Florescue, a regular columnist in the New York Law Journal on matters of domestic relations law, is an adjunct professor at Fordham Law School. He is listed in the current editions of Whos Who in American Law (14th ed.) and Whos Who in America (60th ed.).
Mr. Florescue is a founding member, past president and board director of the Association of Family and Conciliation Courts, NY State Chapter. He was also appointed to be one of the fifteen New York delegates to the Tristate Leadership Group for High Conflict Divorces and Child Custody Disputes by Justice Frazee of the New York Supreme Court.
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