April 2017 : Estimated Tax Payments; Tax Refunds / Overpayments

Michigan Family Law Journal : TAX TRENDS AND DEVELOPMENTS Feature

by Joseph W. Cunningham, JD, CPA

Excerpt:

Estimated tax payments made–and/or taxes withheld – during the year of divorce may be a marital asset. Tax refunds, or overpayments applied to next year’s tax, attributable to tax payments made during marriage may also be a marital asset.

Or it may cut the other way–that is estimated tax payments and/or taxes withheld may be less than the actual tax on marital income received and shared during the year of divorce.

In this regard, note the following:

  1. Separate Returns for Year of Divorce – Whether divorcing parties can file a joint return or must file separate returns depends on their marital status as of December 31. If divorced as of that date, they must file separate returns for their respective separate incomes and deductions.
  2. Estimated Payments are Automatically Credited to the Husband – Since the husband’s social security number (SSN) is generally listed first on joint estimated payment vouchers (Form 1040ES) made during marriage, such payments will automatically be credited to him unless there is a written alternative provision agreed on by the parties.
     
    – The same applies to tax overpayments on the parties’ last joint return applied to the following year’s tax.
  3. Estimated Tax Payments and Taxes Withheld during Marriage are Marital Funds – Absent unusual circumstances, estimated tax payments and taxes withheld during marriage are made with marital money – essentially half by each party.

The above matters are often not addressed in divorce settlements. The following presents (1) observations on such tax payments and (2) applicable tax law.

Tax Payments Made during the Year of Divorce

Example – Assume the following alternative facts for joint estimated tax payments made by – and/or withheld on behalf of – H during the year of a divorce for which the judgment is entered on December 30.

[… Table with Example Data (see PDF below) …]

So, in Case #1, H will receive a windfall unless W’s attorney identifies the overpayment and makes an offsetting adjustment. Half of H’s $10,000 overpayment was made with W’s share of marital funds.
In Case #3, it is H’s attorney who needs to (1) identify that H will pay $10,000 of his own funds on income equally shared with W and (2) make an o setting adjustment. When paying the $10,000, H will, in effect, be paying both his and W’s $5,000 shares of the tax on marital income.

Agreement to Apportion Joint Estimated Tax Payments

IRS Publication 504 – “Divorced or Separated Individuals” – provides that divorced parties may agree on the division of joint estimated tax payments made during marriage.
……

Continued in PDF file below… “Estimated Tax Payments; Tax Refunds / Overpayments”
View / Download April 2017 Article – PDF File

Complete Michigan Family Law Journal available at: Michigan Bar website – Family Law Section (subscription required)

February 2017: Dependency Exemptions for Divorced or Separated Parents

Michigan Family Law Journal : TAX TRENDS AND DEVELOPMENTS Feature

by Joseph W. Cunningham, JD, CPA

Excerpt:

At this time of year, questions often arise as to which of two parents—recently divorced or presently separated—is entitled to the dependency exemption for a child of the marriage.

General Rule under IRC Section 152(e)

IRC Section 152(e) provides a special rule for the right to claim an exemption of a child of divorced or separated parents who, for the year in question:

  • Are divorced or separated under a decree of divorce or separate maintenance at year end; or,
  • Are separated under a written separation agreement at year end; or,
  • Have lived apart at all times during the last six months of the year.
  • And, on a combined basis, had custody of the child for more than half the year; and,
  • On a combined basis, provided more than half the child’s support for the year (support received from a new spouse of a remarried parent is considered provided by that parent).

If these conditions are satisfied, the custodial parent (defined as the parent having physical custody for more than half the year) is automatically entitled to the exemption for a child regardless of:

  • of what the decree or agreement provides
  • which parent furnished more than half of the child’s support.

Waiver Exception to General Rule

For any specified year, or years, or for all future years, the custodial parent may release his or her right to claim the exemption for a child to the noncustodial parent.
……

Continued in PDF file below… “Dependency Exemptions for Divorced or Separated Parents”
View / Download February 2017 Article – PDF File

Complete Michigan Family Law Journal available at: Michigan Bar website – Family Law Section

January 2017 : 2017 Federal Income Tax Rates & Brackets, Etc., Selected IRS Publications, and Attorney “Tax Deduction” Letters

Michigan Family Law Journal : TAX TRENDS AND DEVELOPMENTS Feature

by Joseph W. Cunningham, JD, CPA

Excerpt:

In Rev. Proc. 2016-55 (IRB 2016-45), the IRS released the 2017 tax rates applicable to taxable income of taxpayers ling tax returns as single, married filing jointly, or head of household.

[TABLE INCLUDED IN PDF FILE]

Standard Deduction

  • Single … $6,350; $7,900 if 65 Years Old
  • Married Filing Jointly … $12,700; $13,950 if One Spouse is 65, $15,200 if Both Are 65
  • Head of Household … $9,350; $10,900 if 65

Personal Exemption

The personal exemption for 2017 is $4,050. However, 2% of the personal exemption is “phased out” – or reduced – for each $2,500, or part of $2,500, if a taxpayer’s adjusted gross income (AGI) exceeds the statutory threshold for subject filing status, as follows:

[TABLE INCLUDED IN PDF FILE]

Long-Term Capital Gain Rates

  • 0% for taxpayers in the 10% or 15% brackets.
  • 15% for:
    • Single Filers with taxable income between $37,950 and $416,700
    • Married Filing Jointly with taxable income between $75,900 and $470,700
    • Head of Household with taxable income between $50,800 and $444,550
  • 20% for taxpayers with taxable incomes exceeding the high end of the above ranges

Selected IRS Publications
……

Continued in PDF file below… “2017 Federal Income Tax Rates & Brackets, Etc., Selected IRS Publications, and Attorney “Tax Deduction” Letters”
View / Download January 2017 Article – PDF File

Complete Michigan Family Law Journal available at: Michigan Bar website – Family Law Section

December 2016 : Nontaxable/Nondeductible Designation of Payments

Michigan Family Law Journal : TAX TRENDS AND DEVELOPMENTS Feature

by Joseph W. Cunningham, JD, CPA

Excerpt:

General

A question put to me recently was, essentially – Can payments that may qualify as taxable/deductible be stipulated as nontaxable/nondeductible with assurance they will be so treated for tax purposes?

The answer is “yes”, pursuant to IRC 71(b)(1)(B). Just as it is important to include a “tax intent” provision when payments are intended to be taxable/deductible, the same is advisable when they are intended to be nontaxable/nondeductible. Tax intent provisions prevent misunderstandings down the road. Sometimes a tax preparer may suggest payments are deductible by the payer when such was not intended. A tax intent provision prevents this.

The following is sample generic language for a nontaxable/nondeductible tax intent provision:

“Defendant’s payments of [property/spousal support] to Plaintiff provided in paragraph [ ] are hereby designated by the parties, pursuant to IRC Section 71(b)(1)(B), as not includable in Plaintiff’s income under IRC Section 71 and, correspondingly, not deductible by Defendant under IRC Section 215. Plaintiff and Defendant agree that neither will file an income tax return on which subject payments are reported inconsistently with their expressly designated nontaxable/nondeductible status.”

Other Uses

Lump-Sum Payable on Death of Payer — The nontaxable/ nondeductible designation can be used to ensure that payments of life insurance proceeds or a lump-sum settlement from the estate of a deceased spousal support payer, which is not deductible as alimony on an estate’s income tax return, will not be taxable to the payee. This prevents the possibility of one party being taxed on a sizable payment for which there is no corresponding deduction by the other’s successor-in-interest.

It is common after the death of an alimony payer to con- vert the balance of the obligation to its lump-sum, present
value, after-tax equivalent (using the payee’s tax rate) and pay it in full with insurance proceeds. The nontaxable designation accommodates this practice.

Lump-Sum Payable for Other Reasons
……

Continued in PDF file below… “Nontaxable/Nondeductible Designation of Payments”
View / Download December 2016 Article – PDF File

Complete Michigan Family Law Journal available at: Michigan Bar website – Family Law Section

May 2016 : Court of Appeals Upholds Equal Division of Federal Tax Refund

Michigan Family Law Journal : TAX TRENDS AND DEVELOPMENTS Feature

by Joseph W. Cunningham, JD, CPA

Excerpt:

Court of Appeals Upholds Equal Division of Federal Tax Refund, Demil v Demil, Mich App No. 323205 (10/20/15), and Tips on Providing for Tax Overpayments and Estimated Taxes

Facts

  • The parties agreed to a settlement in June 2013 which, inter alia, provided that they would split the federal tax refund resulting from their 2012 joint income tax return, as follows:
    • “IT IS FURTHER ORDERED AND ADJUDGED that the parties shall equally divide any refund they receive from the 2012 Federal Tax returns. (sic) The defendant shall provide proof of the refund received directly to the Plaintiff within one week of receipt.”
  • Neither party signed the return which was led electronically by their tax preparer in April 2013.
  • The refund was represented to be “in the approximate amount of $2,372”.
  • In fact, the refund was $34,318, of which H applied $23,000 to his 2013 federal tax liability.
  • During the divorce proceedings, H had represented that $2,300 “was a correct characterization of the refund and that he did not have any other assets to disclose to the court.”
  • W later learned that the refund was substantially more than what had been previously indicated and led a mo- tion to enforce the provision in the judgment for equal division.
  • e trial court rejected H’s claim that a large component of the refund was attributable to his father’s income which was reported on the joint tax return ”for estate planning and income tax purposes” and ruled the $34,318 refund be divided equally.
  • H appealed.

Court of Appeals Decision

  • The Court upheld the trial court’s decision ruling that it did not err in its interpretation of the tax refund provision in the judgment of divorce.

Tips on Providing for Division of Tax Overpayments Joint and Several Liability

  • Joint Tax Refunds

Continued in PDF file below… “Court of Appeals Upholds Equal Division of Federal Tax Refund”
View / Download May 2016 Article – PDF File

Complete Michigan Family Law Journal available at: Michigan Bar website – Family Law Section