Q. If I pay make the mortgage payments on our family home, which my husband
occupies, as part of our agreement for spousal support, is this tax deductible?
Fred in La Quinta, CA.
Greetings Fred. Unfortunately, very possibly not.
I've also written a Blog today concerning the tax deductibility of
voluntary spousal support payments. Please read it. It discusses the requirements of
IRC section 71, including the requirement that there be a "divorce or separation
instrument" before payments made can properly be deducted.
People who've separated often voluntarily support their spouse for
a time, while they wait to decide what to do next. That support may be
deductible by the payor (and taxable to the recipient) if certain conditions
are met. Problems arise, and the file gets flagged by the IRS, in particular
where one party claims the spousal support deduction, but the other does
not admit the income in his or her corresponding separate return. You
do not claim spousal support deductions in a joint tax return.
What happens when your ex is living in the family home, and you are paying
the mortgage in lieu of directly paying the support to that person? This
is common where one party wishes to ensure that the mortgage is timely
paid in order to protect his or her credit.
Even if these mortgage payments otherwise seem to qualify for deduction,
they will be disallowed by the IRS if you are audited IF you are personally
obligated to the mortgage holder. If you are an owner or co-owner of the
home and signed the note, payments for property taxes and insurance premiums
on the property may also be disallowed.
To the extent that what is otherwise considered spousal support (including
per court support awards) is paid indirectly on property owned by the
payor spouse instead of to the spouse themself, no matter that it is used
by, or benefits, the supported spouse, the Tax Court has held that such
payments do not qualify as payments "on behalf of" your spouse
for purposes of a support deduction.
See Zinsmeister v. Commr., TC Memo. 2000-364, aff'd (8th Cir. 2001) 21 Fed.Appx 529. Moreover,
the interest deduction for the house may not be deducted either, under
You'd be wise to investigate these issues further with a CPA or tax
specialist attorney. My goal is to alert you to potential traps, so do
your due diligence!
T. W. Arnold, III