Alimony in international divorces


Posted by:
Phil Hodgen

Written on:
September 29, 2012

Posted in:
Divorce
Speeches/Publications

I will be speaking on November 1, 2012 (Los Angeles) and November 2, 2012 (San Francisco and simulcast on the internet) at the 2012 Family Law Conference of the California Society of Certified Public Accountants.

Here, for your reading pleasure, is a portion of the presentation materials. This is installment three of five episodes. Like the others, this version of the handout has all of the footnotes stripped out of it. Sorry. You’ll have to show up in person to get the handout in all of its PDF glory.

Alimony

Introduction

Alimony payments to nonresidents can be tricky. The international tax rules for alimony are similar enough to purely domestic rules to encourage complacency. But there are special withholding and paperwork requirements to consider.

Is it alimony?

The familiar rules that tell us a payment is characterized as alimony will apply:

  • The payment is made in cash;
  • The payment is received by (or behalf of) a spouse under a divorce or written separation instrument;
  • If the spouses are divorced or legally separated, they reside in separate households when the payment is made;
  • The payments to a third party on behalf off the recipient are documented with a timely executed document;
  • The payor’s liability to make payments ends when the recipient dies;
  • The parties do not file a joint tax return; and
  • The divorce or separation instrument does not designate non-alimony treatment.

I will assume that all of these requirements are satisfied, and look at the payment of alimony across borders, from a U.S.-resident payor to a nonresident alien recipient.

When both spouses are U.S. taxpayers

When the alimony recipient is a U.S. citizen or resident, the rule is easy to understand: amounts received are included in the recipient’s income, and the payor deducts the alimony from his or her income.

Paperwork is minimal. The recipient gives the payor his or her social security number and the payor reports the payment amount and recipient’s social security number on his or her tax return.

Penalties are minimal. There is a $50 penalty on either party for failure to comply with these reporting requirements, which may be abated. The IRS cannot deny a deduction for the alimony payment made just because the payor omitted the recipient’s social security number.

How alimony is taxed to a nonresident recipient

A person who is neither a citizen nor a resident of the United States is generally subjected to U.S. income tax only on income derived from U.S. sources.

Once you have decided that you have U.S. source income, you have to know how it is taxed. A nonresident alien’s U.S.-source income will be subject to U.S. tax in one of two ways:

  • just like a resident’s income (income minus allowable deductions, then apply the graduated tax rates), or
  • it will be taxed at a flat 30% of gross income.

Both of these tax methods can be overridden by income tax treaties. The alimony recipient’s U.S. income tax liability will therefore either be the rate mandated by the treaty (i.e., zero), or it will be 30%.

Alimony is U.S. source income

The source of alimony income is the residence of the person who makes the payments. Alimony received by a nonresident alien from his or her U.S.-resident spouse or ex-spouse will be U.S.-source income to the recipient.

Alimony is taxed at 30% by default

U.S. income tax is imposed on U.S.-source alimony at a flat 30% of the gross amount paid to the nonresident recipient. This is the default U.S. income tax treatment that a nonresident alien recipient of alimony from a U.S. spouse or ex-spouse should expect.

This result, however, can be altered by claiming benefits under a relevant income tax treaty.

Or alimony is taxed at 0% because a treaty says so

The United States has many income treaties. A treaty might apply to eliminate the U.S. tax liability on the recipient of alimony–instead of paying 30% U.S. income tax on the alimony received from a U.S.-resident spouse or ex-spouse, the recipient might pay zero U.S. income tax.

The U.S. Model Treaty language gives you an idea of how this works:

Alimony paid by a resident of a Contracting State to a resident of the other Contracting State shall be taxable only in that other State. The term “alimony” as used in this paragraph means periodic payments made pursuant to a written separation agreement or a decree of divorce, separate maintenance, or compulsory support, which payments are taxable to the recipient under the laws of the State of which he is a resident.

The Model Treaty is the U.S. government’s opening position for how they negotiate income tax treaties. It demonstrates that in the abstract alimony should be taxable to the recipient in the recipient’s home country.

The real world is messier. Some treaties have no special rules for alimony. A few treaties give the payor’s country the right to tax alimony. Many, however, follow the general principles of the Model Treaty.

A survey of the many dozens of income tax treaties is beyond the scope of this article. The tax advisor for an alimony recipient should make a careful review of an applicable treaty to determine whether U.S. income tax obligations can be eliminated by invoking the protection of the treaty.

How the payor is taxed

The payor’s right to deduct the alimony payments from income remains unchanged, even if the recipient is a nonresident alien and the income is tax-free to the recipient.

Alimony paperwork for the payor

Here is what the paying spouse should be doing in the paperwork department.

Form 1040

The payor will reduce his or her adjustable gross income by the alimony payments by reporting the information required on Form 1040, Line 31.

Withhold 30% or get Form W-8BEN

A U.S. person making payments of U.S. source income to a nonresident alien is a “withholding agent.”

A withholding agent must withhold 30% of any payment of an amount subject to withholding that is made to a foreign person, unless the withholding agent has documentation to prove the foreign person is entitled to a reduced rate of withholding.

Alimony is an amount subject to withholding. The documentation required from the recipient in order to reduce the amount of tax withheld by the payor is Form W-8BEN.

Risk to payor for withholding failures

The withholding agent may not blindly rely on the nonresident alien’s say-so, even if the paperwork is technically correct. The withholding agent must “reliably associate” the documentation with the payment to the foreign person. This means:

  • The withholding agent must physically have the required documentation in hand;
  • The withholding agent must be able to reliably connect the documentation to the payment and know whether it is going to the recipient or an intermediary; and
  • Have no actual knowledge or reason to know that any of the information in the documentation is false.

But that will not be enough in some cases. If the alimony payment to a nonresident alien is being paid to a U.S. address or account, the documentation is deemed unreliable. The payor must get a “written reasonable explanation” from the recipient to support status as a foreign person and prove the holder of the U.S. account is a foreign person. This means that the person paying alimony to a nonresident alien spouse or ex-spouse must obtain the necessary documentation or withhold 30% of the payments made. Failure to do this will expose the payor to liability for the tax required to be withheld. Documentation failure will cause the same result. There are some opportunities to mitigate this exposure. Accordingly, the alimony payor should insist on having Form W-8BEN, and any necessary additional documentation needed to meet the three requirements listed above.

The payor keeps the documentation on file and does not provide it to the IRS unless requested. If the recipient provides a U.S. taxpayer identification number, Form W-8BEN will be valid and the payor may rely on it until there is a change in circumstances making the information incorrect. For example, if the payor discovers that the recipient has moved from one country to another, this would give the payor “reason to know that the information contained in the documentation is false.” The payor should insist on an updated Form W-8BEN or in the alternative commence withholding tax at 30%.

If the recipient does not provide a U.S. taxpayer identification number, the Form W-8BEN expires at the end of the third year that commences after it was signed. For example, a Form W-8BEN signed in mid-2012, the Form W-8BEN would expire on December 31, 2015. Any payments made after that should have 30% withholding imposed, or a new Form W-8BEN should be obtained.

Form 1042 and Form 1042-S

The payor needs to tell the IRS about the payments and the tax withheld, if any. This is done on Forms 1042 and 1042-S. These are the international equivalents to Form 1099, which is used for domestic payments.

Form 1042 is required for every withholding agent (like our U.S. payor of alimony) who pays “fixed or determinable periodic income.” Alimony is fixed or determinable periodic income.

The filing requirement exists even if no tax is withheld.

In addition to Form 1042, a withholding agent must file Form 1042-S, Foreign Person’s U.S. Source Income Subject to Withholding. If tax is withheld, it is paid with Form 1042. Payment may be due monthly, quarterly, or annually depending on the amount of tax withheld. See the Instructions to Form 1042 to determine when you must deposit the withheld taxes.

A variety of penalties apply to withholding agents who do not correctly withhold and remit withheld tax and file Forms 1042 and 1042-S.

Alimony paperwork for the recipient

Having decided that the recipient will pay U.S. income tax on alimony received at either 30% or the treaty rate of 0%, the next thing to do is deal with the paperwork.

Claiming treaty benefits on Form 8833

If you have determined that the recipient can use the income tax treaty between the United States and his or her home country to eliminate U.S. income taxation of alimony received, it is necessary to notify the IRS of the treaty election. This is done on Form 8833. This is not a stand-alone form, so it filed attached to a Form 1040NR.

The important elements of preparing Form 8833 are:

    • The recipient’s name and address is self-explanatory.
    • A U.S. taxpayer identification number is needed. If the recipient does not have a social security number, it will be necessary to apply for an Individual Taxpayer Identification Number using Form W-7.

Check the box that says the “taxpayer is disclosing a treaty-based return position as required by section 6114.”
Identifying the treaty country at Line 1a. This will be the recipient’s country of domicile.
Identifying the specific Article of the treaty that makes the alimony nontaxable in the United States and taxable only in the home country of the recipient. This is entered on Line 1b.
The Internal Revenue Code provisions overruled or modified are Sections 71(a) and 871(a). This goes on Line 2.
Line 3 contains the identifying information for the payor of alimony.
Line 4 reference a provision of the income tax treaty called the “Limitation of Benefits” article. Most treaties have this provision. Treaties are intended for use only by true residents of the two countries that are parties to the treaty. Find the relevant article in the treaty that applies to the recipient. Make sure that the recipient is eligible for benefits under the treaty. Fill in the appropriate information.
Line 5 is the essay answer. Here it is sufficient to report the gross amount of alimony received, and note that the payments properly qualify as alimony as provided in Internal Revenue Code Section 71.

Form 8833 is attached to Form 1040NR. Instructions for the preparation of Form 1040NR are beyond the topic at hand.

Form W-8BEN

Payments of U.S.-source income (like alimony payments from a U.S. resident) are subjected to reporting requirements and tax withholding requirements. The IRS wants to know about money leaving the country, and it wants to know that any required income tax is withheld from the payment before the money leaves the United States.

The IRS enforces this by imposing penalty risks on the payor. Therefore, the recipient will need to satisfy the paperwork requirements of the payor. If the recipient does not, then the default 30% tax will be imposed, and the payor will (or should) withhold the 30% amount from each payment remitted to the nonresident alien recipient.

The payor needs to know two things:

  • the recipient’s nonresident alien status, and
  • the appropriate tax withholding rate to apply to the alimony payments.

The recipient satisfies both needs by giving Form W-8BEN to the payor. Part I certifies that the recipient is a nonresident alien. If applicable, the right to claim treaty benefits is provided in Part II.

To properly fill in Part II to claim that alimony is exempt from U.S. income taxation by virtue of a provision in an income tax treaty, Part II of Form W-8BEN would be completed as follows:

  • Check the box at Line 9a, and fill in the name of the recipient’s country of residence.
  • Lines 9b through 9e do not apply.
  • Line 10 asks that you fill in the Article number from the treaty that exempts alimony from U.S. taxation and allows the recipient’s country of residence the sole right to tax it. This is the same information you used in Form 8833. The applicable rate of tax is zero. The essay answer can say “The recipient’s country of residence, and not the United States, imposes income tax on alimony received.”

If the recipient provides this form without a U.S. taxpayer identification number, it expires at the end of the third year following the year it was provided to the payor. For example, if the Form W-8BEN is given to the payor in mid-2012, the form will expire on December 31, 2015.

Form W-8BEN is given to the payor. It is not given to the IRS.

Form 1040NR

The recipient’s obligation to file tax returns with the Internal Revenue Service will vary. There may or may not be a need to file an income tax return. Assuming that there is no other reason to file a U.S. income tax return other than the alimony we are discussing, the nonresident alien recipient of U.S.-source alimony will fall into one of these categories:

  • The required withholding was 30%, and it was fully satisfied by tax withheld by the payor. No U.S. income tax return is required to be filed.
  • The required withholding was 0% due to a claim of benefits under an income tax treaty. File Form 1040NR, and attach Form 8833 to render the alimony received exempt from U.S. income tax.
  • The required withholding rate was 30% but the payor did not withhold enough tax to satisfy the tax liability. File Form 1040NR and pay the extra tax liability that is due.
  • The required withholding rate was 0% or 30%, and too much money was withheld from the alimony payments. File Form 1040NR to claim the appropriate refund. File Form 8833 if you are making the election under an income tax treaty to exempt the alimony received from U.S. income taxation.

Conclusion

Alimony payments to a nonresident alien spouse or ex-spouse take extra care. In addition to the normal documentation required to make the payment qualify as alimony for income tax purposes, the “after the fact” tax and paperwork burdens need to be considered and monitored carefully.

The additional tax compliance (and risk) burden on the payor should be professionally handled in order to ensure that the payor’s obligations as a withholding agent are handled properly.