Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the CRA.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle de l'ARC.
Please note that the following document, although believed to be correct at the time of issue, may not represent the current position of the Department.
Prenez note que ce document, bien qu'exact au moment émis, peut ne pas représenter la position actuelle du ministère.
Rulings Summary
Principal Issues:
Deductibility of payments under subsection 60(b) or (c) if the child of the marriage for which the support payments are payable to the former spouse is over the age of majority
Position:
Payments in question are deductible
Reasons:
As the payments are paid directly to the former spouse pursuant to the court order, 60.1(1) is not applicable and the provisions of 60(b) and (c) do not require that the child be in the custody of the recipient spouse be under 18 years of age.
May 23, 1996
Southern Interior B.C. Tax Services HEADQUARTERS
Client Services D. Zion
(613) 957-8953
Attention: Julie Spencer
961177
Child Support Payments
This is in response to your correspondence of March 28, 1996, in which you request our opinion as to whether or not payments made by XXXXXXXXXX to his former spouse for the maintenance of their XXXXXXXXXX are deductible. XXXXXXXXXX has requested permission to have his employer reduce his tax withholdings pursuant to subsection 153(1.1) of the Income Tax Act (the "Act").
The facts, as we understand them based on our review of the documentation forwarded to us, are that XXXXXXXXXX is required under the terms of the divorce judgment to make monthly payments of $XXXXXXXXXX to his former spouse for the support of XXXXXXXXXX In a review of the issue by the Supreme Court of British Columbia in XXXXXXXXXX and not attending school, was found to be a "child of the marriage," as that term is defined in the Divorce Act (1985) of Canada. Given that XXXXXXXXXX is still not attending school, there is some concern as to whether or not he is still a "child of the marriage," as defined in the Divorce Act (1985) of Canada, such that the payments for his support as ordered by the Court would be deductible pursuant to the Act.
Paragraph 60(b) of the Act provides that amounts paid to the former spouse for the maintenance of "the recipient, children of the recipient or both" are deductible to the payer, as long as the other criteria set out in that provision are met. The provision requires that, to be deductible, the amount must be paid as alimony or other allowance that is payable on a periodic basis for the maintenance of the (former) spouse and/or children, pursuant to a decree, order, judgment or written agreement, following a breakdown in the taxpayer's marriage and paid to the (former) spouse at a time when the parties were living separate and apart. An allowance is a specified or determinable amount of money which has been established in advance of payment by the court or the parties as being the required payment to be made by the payer to a spouse or former spouse. The phrase "children of the marriage" was replaced with the one quoted above, effective for the 1992 and subsequent taxation years. For the purposes of the Act, a child of a taxpayer includes a person of whom the taxpayer is the natural parent. All of the criteria for deductibility appear to have been met in the circumstances under review.
Consequently, these child support payments to the former spouse continue to be deductible even though XXXXXXXXXX exceeds the age of majority for as long as XXXXXXXXXX is obligated to make the payments. The issue of whether or not XXXXXXXXXX continues to be a "child of the marriage" for the purposes of determining XXXXXXXXXX obligations under the Divorce Act (1985) of Canada to make the child support payment, is an issue to be determined by the provincial family courts.
We trust that our comments have been of assistance.
John F. Oulton
Section Chief
Business, Property & Personal Section
Business and Publications Division
Income Tax Rulings and
Interpretations Directorate
Policy and Legislation Branch
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