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Allen M., Esq.
Allen M., Esq., Lawyer
Category: Military Law
Satisfied Customers: 19169
Experience:  Lawyer and current JAG officer.
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I was active duty years; divorced wife after 14 years.

Customer Question

I was active duty for 20 years; divorced wife after 14 years. Ex-wife received 42% of retirement pay; I put that as alimony on taxes. Being audited to provide documentation for the alimony. Is this a concern?
There is nothing in divorce decree about taxes.
Submitted: 1 year ago.
Category: Military Law
Expert:  Allen M., Esq. replied 1 year ago.

The tax courts have held that payments made to a former spouse under the USFSPA, even when not called alimony in the divorce decree can be considered alimony for taxation purposes under IRC Section 71.

The principal tax court case on this topic is Neil Jerome Proctor v. Commissioner, 129 TC No. 12.

The court held that if a decree specifies that it is NOT alimony, then it can't be deducted, but if the decree is silent, then it can be held to be alimony for tax purposes.

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