The Taxpayer Relief Act of 1997 has provided significant changes to
the income tax map for individuals and businesses. Some changes which affect the
arena of separation and divorce are as follows:
The sale of a home is easier due to a new exclusion for capital
The dependency exemption is more valuable because three new
credits and a deduction are tied to it.
The lower capital gains income tax makes property with a low
basis more valuable.
New IRA rules can make it easier to utilize IRA funds for
alimony and equitable distribution.
The foregoing changes are incorporated in the following materials.
The Pennsylvania Divorce Code provides that tax consequences of the
property division are one of the eleven factors to be considered in determining
equitable distribution. 23 Pa.C.S.A. ß3502(a)(10).
Prior to the Tax Reform Act of 1984:
United States v. Davis, 370 U.S. 65 (1962) held that a transfer
of property titled in the name of one spouse to the other spouse in satisfaction of
that other spouses marital rights was a taxable transfer of property whereby the
transferor of the property would recognize a gain or loss on the transfer as if the
transfer to the recipient spouse was an arms length sale at the fair market value of
the property as of time of the transfer.
The spouse to whom the property was transferred then took
such property at a stepped-up basis, a basis equal to the propertys fair market
value at the date of transfer.
Property Transfers Pursuant to the Tax Reform Act of 1984:
The Act made the transfer of property in the context of marital
dissolution a non-taxable event. The transferee spouse taking property pursuant to
the marital dissolution would receive the property with the transferors adjusted
basis in the property.
Section 1041(b)(1) makes the rule set forth in Section 1015
applicable to transfers of property pursuant to marital dissolution. Section 1015
provides that when a donor transfers property by gift to a donee, the donee reports
no income upon receipt of the gift.
If the transfer does not occur within one year, but occurs not
greater than six years after the cessation of the marriage pursuant to a divorce or
separation agreement, it will be considered related to the cessation of marriage and
subject to the nonrecognition provisions of Section 1041. Temp. Reg ß1-1041-1T
For good cause shown, the Internal Revenue Service may waive
the time period. Good cause may be shown where there was a legal or business
impediment to the transfer or a dispute as to the nature or value of the assets to be
The Section 1041 nonrecognition provisions are mandatory and
cannot be elected by either spouse.
Section 1041 nonrecognition treatment is available for transfer
to a third party so long as the transfer is required by a divorce or separation
instrument, the transfer is made on behalf of a spouse or former spouse, at that
spouses request, or the transfer by consent in writing by the other spouse. See
Temp. Reg ß1-1041-1T(A-9).
Transfer of Personal Residence Prior to the Taxpayer Relief Act of
Section 1034 which provided for a deferral of gain on the sale of
a personal residence has been totally transformed. Previously it provided for
deferral if the taxpayer met three requirements:
the old residence must have been the taxpayers prior
the new residence purchased must have been the
taxpayers new principal residence; and
the new residence must have been acquired within the
time period two years before the sale and ending two years after the sale of the old
residence. IRC ß1034(a).
Perry v. Commissioner, T.C. Memo 1994-247 (1994), addressed
the determination of whether a residence is a partys principal residence in the
context of divorce. Husband and Wife resided in marital property until June, 1984,
when husband moved to a friends house. In August or September, 1984, Husband
moved into the home of his girlfriend. He continued to make the monthly mortgage
payments directly to the lender until June, 1985, plus he paid the real estate taxes,
insurance and utilities on the property. In the summer, 1985, husband and wife
began to share these expenses, plus husband paid for repairs without
reimbursement from wife. The parties marriage was legally terminated in 1985,
and they entered into a Property Settlement Agreement that provided for wifes
exclusive possession of the marital residence for two years, until December, 1987,
after which the property would be sold and the proceeds would be divided equally.
Prior to sale, husband married his current wife in April, 1987. The property was
sold in March, 1988. Husband and his new wife recognized no gain on the sale of
that property, indicating, instead, pursuant to Form 2119, that they intended to
purchase a replacement home within the two-year period, which they did in August,
The IRS determined that the former marital residence
was not subject to nonrecognition and, therefore, determined a deficiency existed in
husbands (and his new wifes) federal income taxes. The IRS determined that the
former marital residence was not the husbands principal residence.
In upholding the Commissioners determination, the
Perry Tax Court explained principal residence as follows:
The phrase principal residence is not defined by the
Code; however, Section 1.1034-1(c)(3), Income Tax Regs.,
provides that the determination of whether or not
property is used by the taxpayer as his principal residence
depends upon all the facts and circumstances in each
case, including the good faith of the taxpayer. Generally,
for property to be used by the taxpayer as his principal
residence within the meaning of Section 1034(a), that
taxpayer must physically occupy and live in the
dwelling...Whether property constitutes a principal
residence depends entirely upon the facts and
circumstances in each case, and, based on the facts and
circumstances in some cases, certain property has been
considered as the principal residence of taxpayers even
though the taxpayers were not physically present at the
residence at the time of its sale...Those cases involve
situations where the property was rented instead of sold
after the taxpayers moved out because of facts and
circumstances over which the taxpayers had no control.
Where there are exigent circumstances, such as the
inability to sell the property due to the real estate market, notwithstanding that the
parties have vacated the premises, the property remains the taxpayers principal
residence since they were attempting to sell the property at the earliest possible
date (and the rental of the property in that instance was caused by conditions in the
real estate market and was incident to efforts to sell the property). Clapham v.
Commissioner, 63 T.C. 505 (1975).
In Young v. Commissioner, T.C. Memo 1985-127, a
taxpayers divorce settlement granted his former wife a 75% interest in their home
and her exclusive right of possession. Taxpayer was to pay alimony as well as the
mortgage, real estate taxes and homeowners insurance, and he vacated the home.
Subsequently, he purchased a new home with his new wife. The Tax Court held
that the residence was not the taxpayers principal residence within the meaning
of Section 1034 since it ceased to be his new residence, as he had no intention of
returning and had not lived there for more than two years prior to its sale.
In accordance with Young, the Perry Tax Court found
that the house which the Perrys sold was not Mr. Perrys principal residence and he
did not qualify for deferral of recognition treatment. Therefore, once a spouse
moved, his or her house was no longer his or her principal residence for deferral of
Joint Election and Use of Section 1034
Prior to the enactment of the Taxpayer Relief Act of 1997, a husband and wife could elect to have Section 1034 apply to them jointly regardless of actual ownership in the new and old residences. IRC ß1034(g). The adjusted sales price and cost of the new residence to each spouse were combined, and the unrecognized gain as a reduction in basis was allocated between the spouses. If no election under Section 1034(g) was made, each spouse was treated as separately owning one-half interest in the jointly owned personal residence. Each spouse was permitted to separately qualify for the tax-free rollover of the gain. Rev. Rul. 74- 250, 1974-1 C.B. 202.
Section 121 permitted a once-in-a-lifetime exclusion of gain. A
taxpayer could have exempted for all time gain of up to $125,000.00 from the sale of
the taxpayers old residence providing four requirements were met:
Taxpayer was 55 years or older before the date of the sale.
Taxpayer must have owned and used the property as the
principal residence for periods of time which total in the aggregate three years in
the five years immediately prior to the date of the sale. IRC ß1219(a)(2);
Taxpayer must elect treatment under IRC Section 121
and such election could be made only once in a lifetime. IRC ß121(b)(1)(2); and
Up to $125,000.00 of the gain could be excluded. IRC
Where married parties filed separate returns, the excluded gain was limited to
$62,500.00. Where the property was transferred pursuant to marital dissolution
and qualified for nonrecognition treatment pursuant to Section 1041, Section 121
did not apply since the spouse transferring the property would not have taxable
gain to exclude from income. Under those circumstances the Section 121 election
was preserved for both spouses, so that each could take $125,000.00 for a total of
$250,000.00. If a spouse who made a Section 121 election remarried one who had
not made the Section 121 election, the new spouse lost the right to make the
election (so long as he/she was married to said taxpayer).
Transfer of Personal Residence Pursuant to the Taxpayer Relief Act of
Each spouse in a divorce can now exclude up to $250,000.00 gain from
the sale of the marital home.
The requirements are:
the spouse owned the home and used
it as his or her principal residence for two out of five years before the sale; and
the spouse did not already use the exclusion during the two years before the sale.
The new law applies to all sales after May 6, 1997.
In the past, a spouse might have rolled over the gain into a
new home or taken the once-in-a-lifetime $125,000.00 exclusion for persons age 55
or older. But both of these options caused problems for the owners and for the IRS.
Both Code provisions were repealed by the new law.
If one spouse moves from the home and the other continues to
use it as his or her principal residence for a period of time pursuant to a divorce
decree or separation agreement, the spouse who has moved can count this time.
Example: A husband moves, and the divorce decree provides
that the wife will remain in the home for seven more years and then the home must
be sold and the proceeds split. The husband will be treated as if he lived in the
home during those seven years, and will be able to use the exclusion.
Note: Spouses cannot count the time from when they moved
until decree or agreement when into effect. If this period is more than three years,
then the decree or agreement should provide for the other spouse to stay in the
home for at least two additional years, so the moving spouse can meet the two-out-
of-five years requirement.
There is no age requirement and the exclusion can be used once
every two years rather than once in a lifetime. The Section 1034 55 or over age
requirement has been repealed.
If a home is sold before the divorce, and the couple files a joint
return, they can exclude up to $500,000.00 even if the home was owned by just one
If a home was owned by one spouse during the marriage and
then transferred to the other as part of the divorce, the receiving spouse can use the
$250,000.00 exclusion even if the home is sold less than two years later. That is
because the former spouses time of ownership counts for purposes of the two-out-
of-five years requirement.
If a spouse uses the exclusion and then remarries, the new
spouse is still eligible for the exclusion and can even use it less than two years later.
(With the old 55 or over exclusion, the new spouse would not be able to use it
anytime during the marriage.)
The rule that a spouse who moves out can count the time that
the other spouse remains in the house does not just apply to the marital home. For
instance, if a decree or agreement provides for a spouse to live in a vacation home or
new home that the spouses jointly own, both spouses can later exclude gain on the
The exclusion does not apply to gain that results from certain
depreciation deductions taken for events occurring after May 6, 1997. (This might
include a deduction for a home office or a rental of part of the home). If one spouse
stays in the home and takes deductions, and then the home is sold by both spouses,
both will pay income tax on the gain even though only one received the benefit of
Transfer of Retirement Benefits
A domestic relations order which is qualified by a plan
administrator is one of the few exceptions to the non-alienation provisions of ERISA.
It is commonly referred to as a Qualified Domestic Relations Order (QDRO).
Pursuant to 20 U.S.C. Section 1056(d)(3), the nonforfeiture and
non-alienation provisions of ERISA shall not apply if the [domestic relations] order
is determined to be a qualified domestic relations order.
To be a Qualified Domestic Relations Order, a domestic
relations order must specify, inter alia, a specific amount or percentage of the
participants benefit to be paid to the other spouse (called an alternate payee) where
the manner in which the specific amount or percentage is to be covered. 29 U.S.C.
ß1056(d)(3)(C)(ii); IRC ß414℗(2)(b).
The alternate payee of the plan takes the pre-tax deposits into
such a plan subject to later income taxation upon withdrawal.
The alternate payee cannot, without penalty and income
taxation, withdraw the funds prior to the occurrence of an event which would allow
the plan to go into pay status with respect to the participant spouse or allow the
participant spouse to make such a withdrawal without penalty.
If there is a direct transfer to the spouse pursuant to a Qualified
Domestic Relations Order prior to establishment of a separate qualified plan
vehicle, no ten (10%) percent penalty is payable, although there will be income
Conflicting Pennsylvania Superior Court decisions have issued
regarding income tax refunds:
The Superior Court has held that refusal to file a joint tax
return, where the effect of filing jointly would reduce the overall tax liability, is a
dissipation of an asset for purposes of equitable distribution. Gruver v. Gruver, 372
Pa. Super. 194, 539 A.2d 395, appeal denied, 320 Pa. 685, 553 A.2d 968 (1988). But,
it has also been held to the contrary. Hunsinger v. Hunsinger, 387 Pa. Super. 453,
554 A.2d 89 (1989).
The Pennsylvania Superior Court held that a refund
retains the character of the payment from which it was withhold. Cerny v. Cerny,
____ Pa. Super. _____, 656 A.2d 507 (1995).
The apparent conflict is based upon the scope of review by an
appellate court. This abuse of discretion standard upon appeal essentially lets an
equitable distribution trial courts decision stand if there was substantial competent
evidence to support the lower courts decisions. Thus, non-joinder in an income tax
return may constitute dissipation of an asset in one case, but not in another case.
Operating loss tax benefits are transferable.
Stock options which are not transferable can still be the subject
of a property distribution agreement or order.
Limited partnership excess deductions may be recaptured and
imposed on the parties in future.
Spouses may make a gift to a third person of $20,000.00 per
year and both of their annual exclusions will apply in equal shares against the gift
tax imposed on the gift in excess of the annual exclusion. Where spouses use such a
split-gift provision, they must consent to do so.
Interest payable to a recipient spouse on installment payments
is income taxable to the recipient, but may not be deductible by the payor spouse.
The payor spouse can deduct the interest payments if they are treated as alimony.
Property is transferred from one spouse to another, with
transferor basis, which may be substantially depreciated.
To the extent ownership of a life insurance policy or annuity is
transferred, the transfer of the case value of the policy or annuity is subject to the
nonrecognition provisions of Section 1041.
Life insurance and annuity payments are generally not taxed to
the recipient spouse unless the premiums paid on the policy were paid by a third
party (such as an employer).
The Pennsylvania court may decide to order both spouses to attend an orientation for mediation or counseling. Mediation may resolve issues outside of court. The court tells the parties what issues need to be addressed in the sessions (for example, child custody, child support or division of property). The court cannot order mediation if there have been any allegations of domestic violence or child abuse within the past two years.
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