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socrateaser, Lawyer
Category: Tax
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Experience:  Retired (mostly)
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I paid my ex 15k in mythical equity labeled as E.D. when

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I paid my ex 15k in mythical equity labeled as "E.D." when in fact it was a bonus or extended P.S.S. If I can prove we were upside down on home mortgage, I have a appraisal showing there is no equity. The I.R.S. is auditing me. Can i clam the 15K?
The Internal Revenue Code contains an extremely specific definition of spousal support. The following elements must exist, or the transfer between spouses is a nondeductible and nontaxable division of marital property. There are no exceptions to the rule.

The elements are found in IRC 71(b)(1), as follows:

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.
If the court order satisfies the elements, it's deductible spousal support -- otherwise not.

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