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P. Simmons
P. Simmons, Attorney
Category: Business Law
Satisfied Customers: 32771
Experience:  12+ yrs. of legal experience.
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Im not sure I picked the right expert, but heres my question: When

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I'm not sure I picked the right expert, but here's my question:

When I divorced in 1985 I was told by my tax preparer that the share of my ex-husband's military pension was not taxable for me. Now, I'm being told that it is taxable. I didn't know the law was changed, or when. I'm trying to convince the IRS that since I didn't know, I shouldn't have to pay what they say I owe in back taxes. They said I had to prove to them if and when this law changed. Can you tell me when it changed? I'm 72 years old, and I am having a very difficult time handling this.
Thank you.
Kathryn Adams [email protected]
Thanks for the chance to help. I am an attorney with over 12 years experience. Hopefully I can help you with your legal question.

Ma'am I am not sure I understand the question. The law has not changed. Military retirement has always been taxable. So not sure I understand your question...did you want confirmation that the law has, in fact, not changed?
Customer: replied 3 years ago.

When I divorced there was no clear cut answer from Military, IRS, or tax preparers. Many said it was not taxable and some said it was and many said they don't know. Can you tell me what that particular law said in 1985?

yes Ma'am, I can.

The only"law change" as you describe, was actually in 1982.

That was when Congress passed the former spouse protection act. This federal law (found at 10 US Code 1408) made it possible for the court to partition (divide) military retired pay as property.

Prior to the passing of the former spouse protection act, the court did not have the power to divide military retired pay.

So that is the law change.

This law was clear in 85.

It sounds like your tax preparer was confused. Back in 85 the law allowed the court to divide the military pension...and this division created a tax liability for both sides (both the parties are required to report their share as income). So if your tax prepare told you otherwise they were wrong. For that I am very sorry.

It may be you can negotiate with the IRS to reduce your penalty...what you describe, it sure sounds like you got bad advice and relied on that. The IRS has the power to reduce the amount you owe...I would focus on attempting to do just that.

I understand this is not the answer you wanted to hear. But it is the truth...the law on taxability of military retired pensions has not changed over the years...they have been taxable as income from the start. Now...if it was a disability pension, that would NOT be taxable. But if it is a regular retired income (after 20 years of service) then it is taxable income.

Please let me know if you have more questions in this area...happy to help if I can

Customer: replied 3 years ago.

I looked up the law and it says the retired pay is a division of property, not income. Could that be the hangup?

YES...that is true. it iS a division of property. Marital property. That is how the law was written. It was written that way in 82. It allows the court to treat that pension as property, and so they can split it up just like any other property.

It is still is "marital property" as far as the court is concerned...but the IRS treats that property as money or "income" for tax purposes.

This may be why the tax preparer made the mistake..they may not have understood the distinction...that the term "marital property" can translate to income as far as the IRS is concerned.

Customer: replied 3 years ago.

Thank you, XXXXX XXXXX your help.

Yes Ma'am. I wish you the best of luck in this fight.
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