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How to file state and federal taxes for free 18. How to file state and federal taxes for free   Alimony Table of Contents IntroductionSpouse or former spouse. How to file state and federal taxes for free Divorce or separation instrument. How to file state and federal taxes for free Useful Items - You may want to see: General RulesMortgage payments. How to file state and federal taxes for free Taxes and insurance. How to file state and federal taxes for free Other payments to a third party. How to file state and federal taxes for free Instruments Executed After 1984Payments to a third party. How to file state and federal taxes for free Exception. How to file state and federal taxes for free Substitute payments. How to file state and federal taxes for free Specifically designated as child support. How to file state and federal taxes for free Contingency relating to your child. How to file state and federal taxes for free Clearly associated with a contingency. How to file state and federal taxes for free How To Deduct Alimony Paid How To Report Alimony Received Recapture Rule Introduction This chapter discusses the rules that apply if you pay or receive alimony. How to file state and federal taxes for free It covers the following topics. How to file state and federal taxes for free What payments are alimony. How to file state and federal taxes for free What payments are not alimony, such as child support. How to file state and federal taxes for free How to deduct alimony you paid. How to file state and federal taxes for free How to report alimony you received as income. How to file state and federal taxes for free Whether you must recapture the tax benefits of alimony. How to file state and federal taxes for free Recapture means adding back in your income all or part of a deduction you took in a prior year. How to file state and federal taxes for free Alimony is a payment to or for a spouse or former spouse under a divorce or separation instrument. How to file state and federal taxes for free It does not include voluntary payments that are not made under a divorce or separation instrument. How to file state and federal taxes for free Alimony is deductible by the payer and must be included in the spouse's or former spouse's income. How to file state and federal taxes for free Although this chapter is generally written for the payer of the alimony, the recipient can use the information to determine whether an amount received is alimony. How to file state and federal taxes for free To be alimony, a payment must meet certain requirements. How to file state and federal taxes for free Different requirements generally apply to payments under instruments executed after 1984 and to payments under instruments executed before 1985. How to file state and federal taxes for free This chapter discusses the rules for payments under instruments executed after 1984. How to file state and federal taxes for free If you need the rules for payments under pre-1985 instruments, get and keep a copy of the 2004 version of Publication 504. How to file state and federal taxes for free That was the last year the information on pre-1985 instruments was included in Publication 504. How to file state and federal taxes for free Use Table 18-1 in this chapter as a guide to determine whether certain payments are considered alimony. How to file state and federal taxes for free Definitions. How to file state and federal taxes for free   The following definitions apply throughout this chapter. How to file state and federal taxes for free Spouse or former spouse. How to file state and federal taxes for free   Unless otherwise stated, the term “spouse” includes former spouse. How to file state and federal taxes for free Divorce or separation instrument. How to file state and federal taxes for free   The term “divorce or separation instrument” means: A decree of divorce or separate maintenance or a written instrument incident to that decree, A written separation agreement, or A decree or any type of court order requiring a spouse to make payments for the support or maintenance of the other spouse. How to file state and federal taxes for free This includes a temporary decree, an interlocutory (not final) decree, and a decree of alimony pendente lite (while awaiting action on the final decree or agreement). How to file state and federal taxes for free Useful Items - You may want to see: Publication 504 Divorced or Separated Individuals General Rules The following rules apply to alimony regardless of when the divorce or separation instrument was executed. How to file state and federal taxes for free Payments not alimony. How to file state and federal taxes for free   Not all payments under a divorce or separation instrument are alimony. How to file state and federal taxes for free Alimony does not include: Child support, Noncash property settlements, Payments that are your spouse's part of community income, as explained under Community Property in Publication 504, Payments to keep up the payer's property, or Use of the payer's property. How to file state and federal taxes for free Payments to a third party. How to file state and federal taxes for free   Cash payments, checks, or money orders to a third party on behalf of your spouse under the terms of your divorce or separation instrument can be alimony, if they otherwise qualify. How to file state and federal taxes for free These include payments for your spouse's medical expenses, housing costs (rent, utilities, etc. How to file state and federal taxes for free ), taxes, tuition, etc. How to file state and federal taxes for free The payments are treated as received by your spouse and then paid to the third party. How to file state and federal taxes for free Life insurance premiums. How to file state and federal taxes for free   Alimony includes premiums you must pay under your divorce or separation instrument for insurance on your life to the extent your spouse owns the policy. How to file state and federal taxes for free Payments for jointly-owned home. How to file state and federal taxes for free   If your divorce or separation instrument states that you must pay expenses for a home owned by you and your spouse, some of your payments may be alimony. How to file state and federal taxes for free Mortgage payments. How to file state and federal taxes for free   If you must pay all the mortgage payments (principal and interest) on a jointly-owned home, and they otherwise qualify as alimony, you can deduct one-half of the total payments as alimony. How to file state and federal taxes for free If you itemize deductions and the home is a qualified home, you can claim one-half of the interest in figuring your deductible interest. How to file state and federal taxes for free Your spouse must report one-half of the payments as alimony received. How to file state and federal taxes for free If your spouse itemizes deductions and the home is a qualified home, he or she can claim one-half of the interest on the mortgage in figuring deductible interest. How to file state and federal taxes for free Taxes and insurance. How to file state and federal taxes for free   If you must pay all the real estate taxes or insurance on a home held as tenants in common, you can deduct one-half of these payments as alimony. How to file state and federal taxes for free Your spouse must report one-half of these payments as alimony received. How to file state and federal taxes for free If you and your spouse itemize deductions, you can each claim one-half of the real estate taxes and none of the home insurance. How to file state and federal taxes for free    If your home is held as tenants by the entirety or joint tenants, none of your payments for taxes or insurance are alimony. How to file state and federal taxes for free But if you itemize deductions, you can claim all of the real estate taxes and none of the home insurance. How to file state and federal taxes for free Other payments to a third party. How to file state and federal taxes for free   If you made other third-party payments, see Publication 504 to see whether any part of the payments qualifies as alimony. How to file state and federal taxes for free Instruments Executed After 1984 The following rules for alimony apply to payments under divorce or separation instruments executed after 1984. How to file state and federal taxes for free Exception for instruments executed before 1985. How to file state and federal taxes for free   There are two situations where the rules for instruments executed after 1984 apply to instruments executed before 1985. How to file state and federal taxes for free A divorce or separation instrument executed before 1985 and then modified after 1984 to specify that the after-1984 rules will apply. How to file state and federal taxes for free A temporary divorce or separation instrument executed before 1985 and incorporated into, or adopted by, a final decree executed after 1984 that: Changes the amount or period of payment, or Adds or deletes any contingency or condition. How to file state and federal taxes for free   For the rules for alimony payments under pre-1985 instruments not meeting these exceptions, get the 2004 version of Publication 504 at www. How to file state and federal taxes for free irs. How to file state and federal taxes for free gov/pub504. How to file state and federal taxes for free Example 1. How to file state and federal taxes for free In November 1984, you and your former spouse executed a written separation agreement. How to file state and federal taxes for free In February 1985, a decree of divorce was substituted for the written separation agreement. How to file state and federal taxes for free The decree of divorce did not change the terms for the alimony you pay your former spouse. How to file state and federal taxes for free The decree of divorce is treated as executed before 1985. How to file state and federal taxes for free Alimony payments under this decree are not subject to the rules for payments under instruments executed after 1984. How to file state and federal taxes for free Example 2. How to file state and federal taxes for free Assume the same facts as in Example 1 except that the decree of divorce changed the amount of the alimony. How to file state and federal taxes for free In this example, the decree of divorce is not treated as executed before 1985. How to file state and federal taxes for free The alimony payments are subject to the rules for payments under instruments executed after 1984. How to file state and federal taxes for free Alimony requirements. How to file state and federal taxes for free   A payment to or for a spouse under a divorce or separation instrument is alimony if the spouses do not file a joint return with each other and all the following requirements are met. How to file state and federal taxes for free The payment is in cash. How to file state and federal taxes for free The instrument does not designate the payment as not alimony. How to file state and federal taxes for free Spouses legally separated under a decree of divorce or separate maintenance are not members of the same household. How to file state and federal taxes for free There is no liability to make any payment (in cash or property) after the death of the recipient spouse. How to file state and federal taxes for free The payment is not treated as child support. How to file state and federal taxes for free Each of these requirements is discussed below. How to file state and federal taxes for free Cash payment requirement. How to file state and federal taxes for free   Only cash payments, including checks and money orders, qualify as alimony. How to file state and federal taxes for free The following do not qualify as alimony. How to file state and federal taxes for free Transfers of services or property (including a debt instrument of a third party or an annuity contract). How to file state and federal taxes for free Execution of a debt instrument by the payer. How to file state and federal taxes for free The use of the payer's property. How to file state and federal taxes for free Payments to a third party. How to file state and federal taxes for free   Cash payments to a third party under the terms of your divorce or separation instrument can qualify as cash payments to your spouse. How to file state and federal taxes for free See Payments to a third party under General Rules, earlier. How to file state and federal taxes for free   Also, cash payments made to a third party at the written request of your spouse may qualify as alimony if all the following requirements are met. How to file state and federal taxes for free The payments are in lieu of payments of alimony directly to your spouse. How to file state and federal taxes for free The written request states that both spouses intend the payments to be treated as alimony. How to file state and federal taxes for free You receive the written request from your spouse before you file your return for the year you made the payments. How to file state and federal taxes for free Payments designated as not alimony. How to file state and federal taxes for free   You and your spouse can designate that otherwise qualifying payments are not alimony. How to file state and federal taxes for free You do this by including a provision in your divorce or separation instrument that states the payments are not deductible as alimony by you and are excludable from your spouse's income. How to file state and federal taxes for free For this purpose, any instrument (written statement) signed by both of you that makes this designation and that refers to a previous written separation agreement is treated as a written separation agreement (and therefore a divorce or separation instrument). How to file state and federal taxes for free If you are subject to temporary support orders, the designation must be made in the original or a later temporary support order. How to file state and federal taxes for free   Your spouse can exclude the payments from income only if he or she attaches a copy of the instrument designating them as not alimony to his or her return. How to file state and federal taxes for free The copy must be attached each year the designation applies. How to file state and federal taxes for free Spouses cannot be members of the same household. How to file state and federal taxes for free    Payments to your spouse while you are members of the same household are not alimony if you are legally separated under a decree of divorce or separate maintenance. How to file state and federal taxes for free A home you formerly shared is considered one household, even if you physically separate yourselves in the home. How to file state and federal taxes for free   You are not treated as members of the same household if one of you is preparing to leave the household and does leave no later than 1 month after the date of the payment. How to file state and federal taxes for free Exception. How to file state and federal taxes for free   If you are not legally separated under a decree of divorce or separate maintenance, a payment under a written separation agreement, support decree, or other court order may qualify as alimony even if you are members of the same household when the payment is made. How to file state and federal taxes for free Table 18-1. How to file state and federal taxes for free Alimony Requirements (Instruments Executed After 1984) Payments ARE alimony if all of the following are true: Payments are NOT alimony if any of the following are true: Payments are required by a divorce or separation instrument. How to file state and federal taxes for free Payments are not required by a divorce or separation instrument. How to file state and federal taxes for free Payer and recipient spouse do not file a joint return with each other. How to file state and federal taxes for free Payer and recipient spouse file a joint return with each other. How to file state and federal taxes for free Payment is in cash (including checks or money orders). How to file state and federal taxes for free Payment is: Not in cash, A noncash property settlement, Spouse's part of community income, or To keep up the payer's property. How to file state and federal taxes for free Payment is not designated in the instrument as not alimony. How to file state and federal taxes for free Payment is designated in the instrument as not alimony. How to file state and federal taxes for free Spouses legally separated under a decree of divorce or separate maintenance are not members of the same household. How to file state and federal taxes for free Spouses legally separated under a decree of divorce or separate maintenance are members of the same household. How to file state and federal taxes for free Payments are not required after death of the recipient spouse. How to file state and federal taxes for free Payments are required after death of the recipient spouse. How to file state and federal taxes for free Payment is not treated as child support. How to file state and federal taxes for free Payment is treated as child support. How to file state and federal taxes for free These payments are deductible by the payer and includible in income by the recipient. How to file state and federal taxes for free These payments are neither deductible by the payer nor includible in income by the recipient. How to file state and federal taxes for free Liability for payments after death of recipient spouse. How to file state and federal taxes for free   If any part of payments you make must continue to be made for any period after your spouse's death, that part of your payments is not alimony, whether made before or after the death. How to file state and federal taxes for free If all of the payments would continue, then none of the payments made before or after the death are alimony. How to file state and federal taxes for free   The divorce or separation instrument does not have to expressly state that the payments cease upon the death of your spouse if, for example, the liability for continued payments would end under state law. How to file state and federal taxes for free Example. How to file state and federal taxes for free You must pay your former spouse $10,000 in cash each year for 10 years. How to file state and federal taxes for free Your divorce decree states that the payments will end upon your former spouse's death. How to file state and federal taxes for free You must also pay your former spouse or your former spouse's estate $20,000 in cash each year for 10 years. How to file state and federal taxes for free The death of your spouse would not terminate these payments under state law. How to file state and federal taxes for free The $10,000 annual payments may qualify as alimony. How to file state and federal taxes for free The $20,000 annual payments that do not end upon your former spouse's death are not alimony. How to file state and federal taxes for free Substitute payments. How to file state and federal taxes for free   If you must make any payments in cash or property after your spouse's death as a substitute for continuing otherwise qualifying payments before the death, the otherwise qualifying payments are not alimony. How to file state and federal taxes for free To the extent that your payments begin, accelerate, or increase because of the death of your spouse, otherwise qualifying payments you made may be treated as payments that were not alimony. How to file state and federal taxes for free Whether or not such payments will be treated as not alimony depends on all the facts and circumstances. How to file state and federal taxes for free Example 1. How to file state and federal taxes for free Under your divorce decree, you must pay your former spouse $30,000 annually. How to file state and federal taxes for free The payments will stop at the end of 6 years or upon your former spouse's death, if earlier. How to file state and federal taxes for free Your former spouse has custody of your minor children. How to file state and federal taxes for free The decree provides that if any child is still a minor at your spouse's death, you must pay $10,000 annually to a trust until the youngest child reaches the age of majority. How to file state and federal taxes for free The trust income and corpus (principal) are to be used for your children's benefit. How to file state and federal taxes for free These facts indicate that the payments to be made after your former spouse's death are a substitute for $10,000 of the $30,000 annual payments. How to file state and federal taxes for free Of each of the $30,000 annual payments, $10,000 is not alimony. How to file state and federal taxes for free Example 2. How to file state and federal taxes for free Under your divorce decree, you must pay your former spouse $30,000 annually. How to file state and federal taxes for free The payments will stop at the end of 15 years or upon your former spouse's death, if earlier. How to file state and federal taxes for free The decree provides that if your former spouse dies before the end of the 15-year period, you must pay the estate the difference between $450,000 ($30,000 × 15) and the total amount paid up to that time. How to file state and federal taxes for free For example, if your spouse dies at the end of the tenth year, you must pay the estate $150,000 ($450,000 − $300,000). How to file state and federal taxes for free These facts indicate that the lump-sum payment to be made after your former spouse's death is a substitute for the full amount of the $30,000 annual payments. How to file state and federal taxes for free None of the annual payments are alimony. How to file state and federal taxes for free The result would be the same if the payment required at death were to be discounted by an appropriate interest factor to account for the prepayment. How to file state and federal taxes for free Child support. How to file state and federal taxes for free   A payment that is specifically designated as child support or treated as specifically designated as child support under your divorce or separation instrument is not alimony. How to file state and federal taxes for free The amount of child support may vary over time. How to file state and federal taxes for free Child support payments are not deductible by the payer and are not taxable to the recipient. How to file state and federal taxes for free Specifically designated as child support. How to file state and federal taxes for free   A payment will be treated as specifically designated as child support to the extent that the payment is reduced either: On the happening of a contingency relating to your child, or At a time that can be clearly associated with the contingency. How to file state and federal taxes for free A payment may be treated as specifically designated as child support even if other separate payments are specifically designated as child support. How to file state and federal taxes for free Contingency relating to your child. How to file state and federal taxes for free   A contingency relates to your child if it depends on any event relating to that child. How to file state and federal taxes for free It does not matter whether the event is certain or likely to occur. How to file state and federal taxes for free Events relating to your child include the child's: Becoming employed, Dying, Leaving the household, Leaving school, Marrying, or Reaching a specified age or income level. How to file state and federal taxes for free Clearly associated with a contingency. How to file state and federal taxes for free   Payments that would otherwise qualify as alimony are presumed to be reduced at a time clearly associated with the happening of a contingency relating to your child only in the following situations. How to file state and federal taxes for free The payments are to be reduced not more than 6 months before or after the date the child will reach 18, 21, or local age of majority. How to file state and federal taxes for free The payments are to be reduced on two or more occasions that occur not more than 1 year before or after a different one of your children reaches a certain age from 18 to 24. How to file state and federal taxes for free This certain age must be the same for each child, but need not be a whole number of years. How to file state and federal taxes for free In all other situations, reductions in payments are not treated as clearly associated with the happening of a contingency relating to your child. How to file state and federal taxes for free   Either you or the IRS can overcome the presumption in the two situations above. How to file state and federal taxes for free This is done by showing that the time at which the payments are to be reduced was determined independently of any contingencies relating to your children. How to file state and federal taxes for free For example, if you can show that the period of alimony payments is customary in the local jurisdiction, such as a period equal to one-half of the duration of the marriage, you can overcome the presumption and may be able to treat the amount as alimony. How to file state and federal taxes for free How To Deduct Alimony Paid You can deduct alimony you paid, whether or not you itemize deductions on your return. How to file state and federal taxes for free You must file Form 1040. How to file state and federal taxes for free You cannot use Form 1040A or Form 1040EZ. How to file state and federal taxes for free Enter the amount of alimony you paid on Form 1040, line 31a. How to file state and federal taxes for free In the space provided on line 31b, enter your spouse's social security number (SSN) or individual taxpayer identification number (ITIN). How to file state and federal taxes for free If you paid alimony to more than one person, enter the SSN or ITIN of one of the recipients. How to file state and federal taxes for free Show the SSN or ITIN and amount paid to each other recipient on an attached statement. How to file state and federal taxes for free Enter your total payments on line 31a. How to file state and federal taxes for free You must provide your spouse's SSN or ITIN. How to file state and federal taxes for free If you do not, you may have to pay a $50 penalty and your deduction may be disallowed. How to file state and federal taxes for free For more information on SSNs and ITINs, see Social Security Number (SSN) in chapter 1. How to file state and federal taxes for free How To Report Alimony Received Report alimony you received as income on Form 1040, line 11. How to file state and federal taxes for free You cannot use Form 1040A or Form 1040EZ. How to file state and federal taxes for free You must give the person who paid the alimony your SSN or ITIN. How to file state and federal taxes for free If you do not, you may have to pay a $50 penalty. How to file state and federal taxes for free Recapture Rule If your alimony payments decrease or end during the first 3 calendar years, you may be subject to the recapture rule. How to file state and federal taxes for free If you are subject to this rule, you have to include in income in the third year part of the alimony payments you previously deducted. How to file state and federal taxes for free Your spouse can deduct in the third year part of the alimony payments he or she previously included in income. How to file state and federal taxes for free The 3-year period starts with the first calendar year you make a payment qualifying as alimony under a decree of divorce or separate maintenance or a written separation agreement. How to file state and federal taxes for free Do not include any time in which payments were being made under temporary support orders. How to file state and federal taxes for free The second and third years are the next 2 calendar years, whether or not payments are made during those years. How to file state and federal taxes for free The reasons for a reduction or end of alimony payments that can require a recapture include: A change in your divorce or separation instrument, A failure to make timely payments, A reduction in your ability to provide support, or A reduction in your spouse's support needs. How to file state and federal taxes for free When to apply the recapture rule. How to file state and federal taxes for free   You are subject to the recapture rule in the third year if the alimony you pay in the third year decreases by more than $15,000 from the second year or the alimony you pay in the second and third years decreases significantly from the alimony you pay in the first year. How to file state and federal taxes for free   When you figure a decrease in alimony, do not include the following amounts. How to file state and federal taxes for free Payments made under a temporary support order. How to file state and federal taxes for free Payments required over a period of at least 3 calendar years that vary because they are a fixed part of your income from a business or property, or from compensation for employment or self-employment. How to file state and federal taxes for free Payments that decrease because of the death of either spouse or the remarriage of the spouse receiving the payments before the end of the third year. How to file state and federal taxes for free Figuring the recapture. How to file state and federal taxes for free   You can use Worksheet 1 in Publication 504 to figure recaptured alimony. How to file state and federal taxes for free Including the recapture in income. How to file state and federal taxes for free   If you must include a recapture amount in income, show it on Form 1040, line 11 (“Alimony received”). How to file state and federal taxes for free Cross out “received” and enter “recapture. How to file state and federal taxes for free ” On the dotted line next to the amount, enter your spouse's last name and SSN or ITIN. How to file state and federal taxes for free Deducting the recapture. How to file state and federal taxes for free   If you can deduct a recapture amount, show it on Form 1040, line 31a (“Alimony paid”). How to file state and federal taxes for free Cross out “paid” and enter “recapture. How to file state and federal taxes for free ” In the space provided, enter your spouse's SSN or ITIN. How to file state and federal taxes for free Prev  Up  Next   Home   More Online Publications
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Answers to Frequently Asked Questions for Registered Domestic Partners and Individuals in Civil Unions

The following questions and answers provide information to individuals of the same sex and opposite sex who are in registered domestic partnerships, civil unions or other similar formal relationships that are not marriages under state law. These individuals are not considered as married or spouses for federal tax purposes. For convenience, these individuals are referred to as “registered domestic partners” in these questions and answers. Questions and answers 9 through 27 concern registered domestic partners who reside in community property states and who are subject to their state’s community property laws. These questions and answers have been updated since the Supreme Court issued its decision in United States v. Windsor. As a result of the Court’s decision, the Service has ruled that same-sex couples who are married under state law are married for federal tax purposes. See Revenue Ruling 2013-17 in 2013‑38 IRB 201.

Q1. Can registered domestic partners file federal tax returns using a married filing jointly or married filing separately status?

A1. No. Registered domestic partners may not file a federal return using a married filing separately or jointly filing status. Registered domestic partners are not married under state law. Therefore, these taxpayers are not married for federal tax purposes.

Q2. Can a taxpayer use the head-of-household filing status if the taxpayer’s only dependent is his or her registered domestic partner?

A2. No. A taxpayer cannot file as head of household if the taxpayer’s only dependent is his or her registered domestic partner. A taxpayer’s registered domestic partner is not one of the specified related individuals in section 152(c) or (d) that qualifies the taxpayer to file as head of household, even if the registered domestic partner is the taxpayer’s dependent.

Q3. If registered domestic partners have a child, which parent may claim the child as a dependent?

A3. If a child is a qualifying child under section 152(c) of both parents who are registered domestic partners, either parent, but not both, may claim a dependency deduction for the qualifying child. If both parents claim a dependency deduction for the child on their income tax returns, the IRS will treat the child as the qualifying child of the parent with whom the child resides for the longer period of time during the taxable year. If the child resides with each parent for the same amount of time during the taxable year, the IRS will treat the child as the qualifying child of the parent with the higher adjusted gross income.

Q4. Can a registered domestic partner itemize deductions if his or her partner claims a standard deduction? 

A4. Yes. A registered domestic partner may itemize or claim the standard deduction regardless of whether his or her partner itemizes or claims the standard deduction. Although the law prohibits a taxpayer from itemizing deductions if the taxpayer’s spouse claims the standard deduction (section 63(c)(6)(A)), this provision does not apply to registered domestic partners, because registered domestic partners are not spouses for federal tax purposes.

Q5. If registered domestic partners adopt a child together, can one or both of the registered domestic partners qualify for the adoption credit?

A5. Yes. Each registered domestic partner may qualify to claim the adoption credit for the amount of the qualified adoption expenses paid for the adoption. The partners may not both claim a credit for the same qualified adoption expenses, and the sum of the credit taken by each registered domestic partner may not exceed the total amount paid. The adoption credit is limited to $12,970 per child in 2013. Thus, if both registered domestic partners paid qualified adoption expenses to adopt the same child, and the total of those expenses exceeds $12,970, the maximum credit available for the adoption is $12,970. The registered domestic partners may allocate this maximum between them in any way they agree, and the amount of credit claimed by one registered domestic partner can exceed the adoption expenses paid by that person, as long as the total credit claimed by both registered domestic partners does not exceed the total amount paid by them. The same rules generally apply in the case of a special needs adoption. 

Q6. If a taxpayer adopts the child of his or her registered domestic partner as a second parent or co-parent, may the taxpayer (“adopting parent”) claim the adoption credit for the qualifying adoption expenses he or she pays to adopt the child?

A6. Yes. The adopting parent may be eligible to claim an adoption credit. A taxpayer may not claim an adoption credit for the expenses of adopting the child of the taxpayer’s spouse (section 23) .  However, this limitation does not apply to adoptions by registered domestic partners because registered domestic partners are not spouses for federal tax purposes.

Q7. Do provisions of the federal tax law such as section 66 (treatment of community income) and section 469(i)(5) ($25,000 offset for passive activity losses for rental real estate activities) that apply to married taxpayers apply to registered domestic partners?

A7. No. Like other provisions of the federal tax law that apply only to married taxpayers, section 66 and section 469(i)(5) do not apply to registered domestic partners because registered domestic partners are not married for federal tax purposes.

Q8. Is a registered domestic partner the stepparent of his or her partner’s child?

A8. If a registered domestic partner is the stepparent of his or her partner’s child under state law, the registered domestic partner is the stepparent of the child for federal income tax purposes.


Publication 555, Community Property, provides general information for taxpayers, including registered domestic partners, who reside in community property states. The following questions and answers provide additional information to registered domestic partners (including same-sex and opposite-sex registered domestic partners) who reside in community property states and are subject to community property laws.

Q9. How do registered domestic partners determine their gross income?

A9. Registered domestic partners must each report half the combined community income earned by the partners.  In addition to half of the community income, a partner who has income that is not community income must report that separate income. 

Q10.  Can a registered domestic partner qualify to file his or her tax return using head-of-household filing status?

A10. Generally, to qualify as a head-of-household, a taxpayer must provide more than half the cost of maintaining his or her household during the taxable year, and that household must be the principal place of abode of the taxpayer’s dependent for more than half of the taxable year (section 2(b)). If registered domestic partners pay all of the costs of maintaining the household from community funds, each partner is considered to have incurred half the cost and neither can qualify as head of household. Even if one of the partners pays more than half by contributing separate funds, that partner cannot file as head of household if the only dependent is his or her registered domestic partner. A taxpayer’s registered domestic partner is not one of the specified related individuals in section 152(c) or (d) that qualifies the taxpayer to file as head of household, even if the partner is the taxpayer’s dependent.    

Q11. Can a registered domestic partner be a dependent of his or her partner for purposes of the dependency deduction under section 151?

A11. A registered domestic partner can be a dependent of his or her partner if the requirements of sections 151 and 152 are met. However, it is unlikely that registered domestic partners will satisfy the gross income requirement of section 152(d)(1)(B) and the support requirement of section 152(d)(1)(C). To satisfy the gross income requirement, the gross income of the individual claimed as a dependent must be less than the exemption amount ($3,900 for 2013). Because registered domestic partners each report half the combined community income earned by both partners, it is unlikely that a registered domestic partner will have gross income that is less than the exemption amount.   

To satisfy the support requirement, more than half of an individual’s support for the year must be provided by the person seeking the dependency deduction. If a registered domestic partner’s (Partner A’s) support comes entirely from community funds, that partner is considered to have provided half of his or her own support and cannot be claimed as a dependent by another. However, if the other registered domestic partner (Partner B) pays more than half of the support of Partner A by contributing separate funds, Partner A may be a dependent of Partner B for purposes of section 151, provided the other requirements of sections 151 and 152 are satisfied. 

Q12. Can a registered domestic partner be a dependent of his or her partner for purposes of the exclusion in section 105(b) for reimbursements of expenses for medical care?

A12. A registered domestic partner (Partner A) may be a dependent of his or her partner (Partner B) for purposes of the exclusion in section 105(b) only if the support requirement (discussed in Question 11, above) is satisfied. Unlike the requirements for section 152(d) (dependency deduction for a qualifying relative), section 105(b) does not require that Partner A's gross income be less than the exemption amount in order for Partner A to qualify as a dependent.                   

Q13. How should registered domestic partners report wages, other income items, and deductions on their federal income tax returns?

A13. Registered domestic partners should report wages, other income items, and deductions according to the instructions to Form 1040, U.S. Individual Income Tax Return, and related schedules, and Form 8958, Allocation of Tax Amounts Between Certain Individuals in Community Property States. Form 8958 is used to determine the allocation of tax amounts between registered domestic partners. Each partner must complete and attach Form 8958 to his or her Form 1040.

Q14. Should registered domestic partners report social security benefits as community income for federal tax purposes? 

A14. Generally, state law determines whether an item of income constitutes community income. Accordingly, if Social Security benefits are community income under state law, then they are also community income for federal income tax purposes. If Social Security benefits are not community income under state law, then they are not community income for federal income tax purposes. 

Q15. How should registered domestic partners report community income from a business on Schedule C, Profit or Loss From Business?

A15. Half of the income, deductions, and net earnings of a business operated by a registered domestic partner must be reported by each registered domestic partner on a Schedule C (or Schedule C-EZ). In addition, each registered domestic partner owes self-employment tax on half of the net earnings of the business. The self-employment tax rule under section 1402(a)(5) that overrides community income treatment and attributes the income, deductions, and net earnings to the spouse who carries on the trade or business does not apply to registered domestic partners.

Q16.  Are registered domestic partners each entitled to half of the credits for income tax withholding from the combined wages of the registered domestic partners?

A16. Yes. Because each registered domestic partner is taxed on half the combined community income earned by the partners, each is entitled to a credit for half of the income tax withheld on the combined wages.

Q17.  Are registered domestic partners each entitled to take credit for half of the total estimated tax payments paid by the partners?

A17. No. Unlike withholding credits, which are allowed to the person who is taxed on the income from which the tax is withheld, a registered domestic partner can take credit only for the estimated tax payments that he or she made.       

Q18. Are community property laws taken into account in determining earned income for purposes of the dependent care credit, the refundable portion of the child tax credit, the earned income credit, and the making work pay credit?   

A18. No. The federal tax laws governing these credits specifically provide that earned income is computed without regard to community property laws in determining the earned income amounts described in section 21(d) (dependent care credit), section 24(d) (the refundable portion of the child tax credit), section 32(a) (earned income credit), and section 36A(d) (making work pay credit).

Q19. Are community property laws taken into account in determining adjusted gross income (or modified adjusted gross income) for purposes of the dependent care credit, the child tax credit, the earned income credit, and the making work pay credit?

A19. Yes. Community property laws must be taken into account in determining the adjusted gross income (or modified adjusted gross income) amounts in section 21(a) (dependent care credit), section 24(b) (child tax credit), section 32(a) (earned income credit), and section 36A(b) (making work pay credit).

Q20. Are amounts a registered domestic partner receives for education expenses that cannot be excluded from the partner’s gross income (includible education benefits) considered to be community income? 

A20. Generally, state law determines whether an item of income constitutes community income. Accordingly, whether includible education benefits are community income for federal income tax purposes depends on whether they are community income under state law. If the includible education benefits are community income under state law, then they are community income for federal income tax purposes. If not community income under state law, they are not community income for federal income tax purposes. 

Q21. If only one registered domestic partner is a teacher and pays qualified out-of-pocket educator expenses from community funds, do the registered domestic partners split the educator expense deduction?

A21. No. Section 62(a)(2)(D) allows only eligible educators to take a deduction for qualified out-of-pocket educator expenses. If only one registered domestic partner is an eligible educator (the eligible partner), then only the eligible partner may claim a section 62(a)(2)(D) deduction. If the eligible partner uses community funds to pay educator expenses, the eligible partner may determine the deduction as if he or she made the entire expenditure. In that case, the eligible partner has received a gift from his or her partner equal to one-half of the expenditure.  

Q22. If a registered domestic partner incurs indebtedness for his or her qualified education expenses or the expenses of a dependent and pays interest on the indebtedness out of community funds, do the registered domestic partners split the interest deduction?

A22. No. To be a qualified education loan, the indebtedness must be incurred by a taxpayer to pay the qualified education expenses of the taxpayer, the taxpayer’s spouse, or a dependent of the taxpayer (section 221(d)(1)). Thus, only the partner who incurs debt to pay his or her own education expenses or the expenses of a dependent may deduct interest on a qualified education loan (the student partner). If the student partner uses community funds to pay the interest on the qualified education loan, the student partner may determine the deduction as if he or she made the entire expenditure. In that case, the student partner has received a gift from his or her partner equal to one-half of the expenditure. 

Q23.  If registered domestic partners pay the qualified educational expenses of one of the partners or a dependent of one of the partners with community funds, do the registered domestic partners split the section 25A credits (education credits)?

A23. No. Only the partner who pays his or her own education expenses or the expenses of his or her dependent is eligible for an education credit (the student partner). If the student partner uses community funds to pay the education expenses, the student partner may determine the credit as if he or she made the entire expenditure. In that case, the student partner has received a gift from his or her partner equal to one-half of the expenditure. Similarly, if the student partner is allowed a deduction under section 222 (deduction for qualified tuition and related expenses), and uses community funds to pay the education expenses, the student partner may determine the qualified tuition expense deduction as if he or she made the entire expenditure. In that case, the student partner has received a gift from his or her partner equal to one-half of the expenditure.     

Q24. Are community property laws taken into account in determining compensation for purposes of the IRA deduction?

A24. No. The federal tax laws governing the IRA deduction (section 219(f)(2)) specifically provide that the maximum IRA deduction (under section 219(b)) is computed separately for each individual, and that these IRA deduction rules are applied without regard to any community property laws. Thus, each individual determines whether he or she is eligible for an IRA deduction by computing his or her individual compensation (determined without application of community property laws). 

Q25. If a registered domestic partner is self-employed and pays health insurance premiums for both partners out of community property funds, are both partners allowed a deduction under section 162(l) (deduction for self-employed health insurance)?

A25. If one of the registered domestic partners is a self-employed individual treated as an employee within the meaning of section 401(c)(1)(the employee partner) and the other partner is not (the non-employee partner), the employee partner may be allowed a deduction under section 162(l) for the cost of the employee partner’s health insurance paid out of community funds. If the non-employee partner is also covered by the health insurance, the portion of the cost attributable to the non-employee partner’s coverage is not deductible by either the employee partner or the non-employee partner under section 162(l).  

Q26. If a registered domestic partner has a dependent and incurs employment-related expenses that are paid out of community funds, how does the registered domestic partner calculate the dependent care credit?  How about the child tax credit?

A26. If a registered domestic partner has a qualifying individual as defined in section 21(b)(1) and incurs employment-related expenses as defined in section 21(b)(2) for the care of the qualifying individual that are paid with community funds, the partner (employee partner) may determine the dependent care credit as if he or she made the entire expenditure. In that case, the employee partner has received a gift from his or her partner equal to one-half of the expenditure. In computing the dependent care credit, the following rules apply:

  • The employee partner must reduce the employment-related expenses by any amounts he or she excludes from income under section 129 (exclusion for employees for dependent care assistance furnished pursuant to a program described in section 129(d));
  • The earned income limitation described in section 21(d) is determined without regard to community property laws; and
  • The adjusted gross income of the employee partner is determined by taking into account community property laws.

A child tax credit is allowed for each qualifying child of a taxpayer for whom the taxpayer is allowed a personal exemption deduction. Thus, if a registered domestic partner has one or more dependents who is a qualifying child, the registered domestic partner may be allowed a child tax credit for each qualifying child. In determining the amount of the allowable credit, the modified adjusted gross income of the registered domestic partner with the qualifying child is determined by taking into account community property laws. Community property laws are ignored, however, in determining the refundable portion of the child tax credit.

Q27. Does Rev. Proc. 2002-69, 2002-2 C.B. 831, apply to registered domestic partners?

A27. No. Rev. Proc. 2002-69 allows spouses to classify certain entities solely owned by the spouses as community property, as either a disregarded entity or a partnership for federal tax purposes. Rev. Proc. 2002-69 applies only to spouses. Because registered domestic partners are not spouses for federal tax purposes, Rev. Proc. 2002-69 does not apply to registered domestic partners.

Related Item: Forms and Publications

Page Last Reviewed or Updated: 19-Sep-2013

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