Internal Revenue Service
Revenue Ruling
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smRev. Rul. 70-61
1970-1 C.B. 18
Sec. 71
IRS Headnote
Payments to a former wife for alimony and child support, pursuant to a New York decree that was subsequent to a Florida ex parte divorce decree requiring only child support payments by the husband, are includible in her gross income as alimony.
Full Text
Rev. Rul. 70-61
Advice has been requested whether, under the circumstances described below, payments received by a former wife are includible in her gross income as alimony under section 71(a)(3) of the Internal Revenue Code of 1954.
The wife, a New York state resident, was divorced in a Florida ex parte proceeding. The Florida court ordered the husband to make certain payments for the support of the children of the parties, but not for the support of the wife. The wife subsequently brought a proceeding in a New York court to have the Florida divorce set aside and to obtain a decree of legal separation. The New York Supreme Court dismissed the action by the wife to set aside the Florida divorce but ordered the husband to pay the former wife a certain sum each week for her alimony and for the support of their children.
The New York support order was made in accordance with the provisions of section 1170-b of the Civil Practice Act of the State of New York as added to Chapter 663 by the Laws of New York, 176th Session (Vol. 2) 1506 (1953) (presently section 236 of Article 13 of the Domestic Relations Law of the State of New York), which, in pertinent part, provides that by reason of a finding by the court that a divorce, annulment, or judgment declaring the marriage a nullity had previously been granted to the husband in an action in which jurisdiction over the person of the wife was not obtained, the court may, nevertheless, render in the same action such judgment as justice may require for the maintenance of the wife.
Section 71(a)(3) of the Code provides that if a wife is separated from her husband, the wife's gross income includes periodic payments (whether or not made at regular intervals) received by her after August 16, 1954, from her husband under a decree entered after March 1, 1954, requiring the husband to make the payments for her support or maintenance. This paragraph does not apply if the husband and wife make a single return jointly.
Section 1.71-1(b)(3)(i) of the Income Tax Regulations provides that where the husband and wife are separated and living apart and do not file a joint income tax return for the taxable year, paragraph (3) of section 71(a) requires the inclusion in the gross income of the wife of periodic payments (whether or not made at regular intervals) received by her after August 16, 1954, from her husband under any type of court order or decree (including an interlocutory decree of divorce or a decree of alimony pendente lite) entered after March 1, 1954, requiring the husband to make payments for her support or maintenance. It is not necessary for the wife to be legally separated or divorced from her husband under a court order or decree; nor is it necessary for the order or decree for support to be for the purpose of enforcing a written separation agreement.
The legislative history of section 71(a)(3) of the Code emphasizes that the factual status of whether the parties are living apart rather than their exact marital status in law is to be the key in determining whether amounts paid by the husband under a court order or decree for support of the wife are deductible. See Senate Report No. 1622, Eighty-third Congress, page 10. Also, the portion of the report dealing with the technical aspects with respect to section 71 (beginning at page 170), states that section 71(a)(3) is applicable only if the wife is separated from her husband, but such separation need not be under a decree nor need the payments be made to enforce a written separation agreement.
The husband was under a continuing legal obligation in New York to make payments to his former wife because of the family or marital relationship. This obligation was made specific by the New York proceedings.
Accordingly, it is held that the payments made under the New York decree by the former husband to his former wife are includible in her gross income as alimony under the provisions of section 71(a)(3) of the Code.