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JKCPA
JKCPA, CPA
Category: Tax
Satisfied Customers: 5706
Experience:  CPA with tax experience.
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The IRS is challenging my 2007 alimony paid because my 1993

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The IRS is challenging my 2007 alimony paid because my 1993 divorce decree does not stipulate that the payments end upon the death of my ex-wife and state law, at that time, did not state that alimony ended upon the death of the payee spouse. However, it was common practice in my state that alimony ended upon the death of the payee unless there was a court order stating otherwise. In 1999 the state legislature codified the common law death contingency.

The amount in question is about $2300 so it would not be worth the cost of retaining an attorney to fight this but I can present a pro se case. Is this something I may be able to win or should I just pay the tax and be done with it?
Submitted: 4 years ago.
Category: Tax
Expert:  Merlo replied 4 years ago.
Hello howard,

Can I assume from what you have said here that in fact your alimony payments would end upon the death of your ex spouse?

Customer: replied 4 years ago.
My decree did not state that the alimony would end upon her death and the state law at the time was moot. It was commonly understood at that time, and my belief, that alimony would end upon death. That common law assumption has since been codified into the state law.
Expert:  Merlo replied 4 years ago.
Thank you for the clarification. I will put your question back on the board to see if one of the other experts in the forum has any suggestions for your case.

Customer: replied 4 years ago.
I believe that the alimony payments would have ended if she had died. But the decree and the state law were both moot at the time of my divorce.
Expert:  JKCPA replied 4 years ago.
This is from IRC Sec. 71:

(b)
Alimony or separate maintenance payments defined
For purposes of this section -
(1) In general
The term "alimony or separate maintenance payment" means any payment in cash if -
(A) such payment is received by (or on behalf of) a spouse under a divorce or separation instrument,
(B) the divorce or separation instrument does not designate such payment as a payment which is not includible in gross income under this section and not allowable as a deduction under section 215,
(C) in the case of an individual legally separated from his spouse under a decree of divorce or of separate maintenance, the payee spouse and the payor spouse are not members of the same household at the time such payment is made, and
(D) there is no liability to make any such payment for any period after the death of the payee spouse and there is no liability to make any payment (in cash or property) as a substitute for such payments after the death of the payee spouse.

I think you may have a point. Based on this tax law, you may be able to argue that the 1999 state codification satisfied item D above. Obtain a copy of your state codification. Write a letter to the IRS and include this excerpt. Ask them to abate the assessment based on this. Follow the instructions on the notice/letter you received from the IRS.
Please remember to click on the green Accept button below if I have helped you satisfactorily. Thanks and good luck!
JKCPA, CPA
Category: Tax
Satisfied Customers: 5706
Experience: CPA with tax experience.
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