Income Tax Implications of Support Payments

Income Tax Implications of Support Payments

 

 

This article provides information only, not legal advice. If you have a legal problem or need legal advice, contact us at info@logoslaw.ca or call us at 604-294-0101.

 

On Nov. 23, 2011, a new family law bill was passed in the B.C. legislature. The Family Law Act will come fully into force on March 18, 2013. The act places the safety and best interests of the child first when families are going through separation and divorce. It also clarifies parental responsibilities and the division of assets if relationships break down, addresses family violence and encourages families to resolve their disputes out of court.

 

Some of the information contained in this article will be affected by the changes in the legislation coming into force on March 18, 2013.

The Income Tax Act has complex rules for support payments

It’s a good idea to have legal advice and even to talk to an accountant about how the tax

rules may apply before you come to any agreement about support with your spouse.


The Income Tax Act refers to “alimony” and to “maintenance”. There is a technical difference, but they mean the same thing for the purposes of this script. The term “spousal support” will be used here to refer to both alimony and maintenance. For child support payments, the term “child support” will be used.

Different tax rules apply to spousal support and child support
Spousal support is generally deductible for the payor and taxable for the recipient, while child support is generally not deductible or taxable.


Spousal support is usually deductible and taxable
The general rule is this: spousal support is taxable income in the hands of the spouse receiving it and is a tax deduction for the spouse paying it. In other words, the spouse receiving support must report the support payments as income, in the same way that income from a job is taxable, and pay income tax on the support he or she receives. The spouse who pays the support can claim it as a deduction from his or her taxable income in the same way that RRSP contributions are deductible.


Spousal support payments must be paid on a regular periodic basis if they are to be taxable for the recipient and deductible for the payor, and the requirement to pay must be set out in a written agreement or a court order.


Spousal support paid as a lump sum is not taxable or deductible, for example if a payor decided to pay all of his or her payments right away from his or her share of the family assets. Spousal support paid indirectly, such as by paying the mortgage or by providing services in kind, may not be taxable or deductible. Making a decision about how to pay spousal support is a decision with serious tax consequences for both spouses. Make sure you consult with a lawyer or tax advisor.

 

To be tax deductible and taxable, the spousal support must actually be paid
Also, you must have a record of your payments. If you’re paying support, you should pay by cheque, by bank draft or by money order, and keep copies of the receipts and cancelled cheques. Don’t have someone else make the spousal support payments on your behalf, and don’t pay it out of a joint account. To assist with record keeping for tax purposes, write “spousal support” on the front of the cheque and the month and year the payment is for.


Problems may occur if spousal support is offset by another payment
Say, for example, that the payor must pay $600 a month as spousal support, but the recipient of spousal support must pay $100 a month to the payor for child support. While it would be easier to just pay $500, it can be difficult to prove to the Canada Revenue Agency that $600 in spousal support was really paid, and the CRA may only allow a $500 deduction. It’s best to just pay the whole $600 and actually get the $100 back.


There must be a written agreement or court order

For spousal support payments to be taxable and deductible there has to be a written agreement or a court order concerning the payment of spousal support. If a couple simply separate and agree between themselves that spousal support will be paid, the support will be paid but with no deduction for the payor and no tax payable by the recipient. As a result, a spouse who agrees to pay support will sometimes go to court and ask a judge to make a support order to get the benefit of the tax deduction.


In the case of a written separation agreement, the agreement must state the date of separation, as well as the terms of any support payments to be made, such as the date the support payments will begin and the exact amount payable. The details and wording of separation agreements are very important.


There are ways to allow for the deduction of certain payments made before spouses get their court order or separation agreement, but these are technical and you should get the advice of a lawyer who is familiar with them.


Support payments can only be made to the spouse, not to someone else
Generally speaking, support payments are only taxable and deductible if they are made to a spouse or former spouse, and they’re not usually deductible if they’re paid to someone else. A spouse might, for example, agree to pay a smaller amount of spousal support but also pay the mortgage on the family home. This kind of payment arrangement can be very tricky, and again, you should get the advice of a lawyer or accountant to be sure that the payments will be treated by the Canada Revenue Agency in the way that you intend.


People sometimes disagree about whether a payment was actually made
This happens frequently when payments are made in cash. One spouse might claim to have made a payment or the other spouse might deny receiving it. As a result, it’s a good idea to make any support payments in such a way that there is proof of payment, for example, paying by cheque, bank draft or money order. If you must pay in cash, get a receipt from your spouse clearly stating the amount, the date and the purpose of the payment.


Child support payments are usually not deductible or taxable
Child support is not taxable or deductible unless child support is being paid as a result of a written agreement or court order made before May 1, 1997. All agreements or court orders made on or after May 1, 1997 automatically follow the new rules. You can’t deduct child support if you pay it, and you do not have to pay tax on child support if you receive it.


Parents with old orders and agreements can agree to change the deductibility of child support
Parents can agree between themselves that child support payments made under an agreement or order made before May 1, 1997 will follow the new tax rules by filing a form with the CRA. Once they do this, they cannot go back to the old rules.


The written agreement or court order must say what kind of support is being paid
Because spousal support is generally tax deductible and child support generally isn’t, an agreement or order must say what amount is being paid for spousal support and what is paid for child support. If the agreement or order sets out a single sum to be paid for both spousal support and child support, without stating how much is for what, the CRA will treat the whole amount as child support and the payor will get no deduction, even if a part of the amount paid is supposed to be for spousal support.


Some legal fees and expenses are tax deductible
The cost of obtaining or enforcing a spousal support or child support order, including an order for the payment of arrears, is deductible for the person receiving support. The cost of defending a claim for support or for the payment of arrears of support is not deductible.


To claim the deduction for your lawyer’s fees, you must show how much of your lawyer’s bill went to the support claim. While it’s possible to ask your lawyer for a letter estimating how much of their time went to the support claim, it’s usually easiest for the lawyer to keep track of their time from the beginning. If you want to claim this deduction, make sure you tell your lawyer right from the outset.


Additional information about the deduction of lawyer’s fees is available from the Canada Revenue Agency at:

 

www.cra-arc.gc.ca/tx/ndvdls/tpcs/ncm-tx/rtrn/cmpltng/ddctns/lns206-236/232/lgl-eng.html.

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