It’s only a small-claimer, so you can’t cite it as authority, but there’s good stuff for the family lawyer’s formbook in Joshua Henry Wish, 2015 T. C. Sum. Op. 25, filed 4/6/15. Although schoolteacher Josh gets nailed for a math error, it’s one of those rare cases where the taxpayer wins an alimony deficiency.

Josh and loved-once had one learning-disabled child, whom loved-once quit her job to homeschool. When their marriage expired, loved-once continued to homeschool, and wanted money to compensate her for lost earnings.

Without benefit of counsel, Josh and loved-once drafted their own stipulation, separately stating child support and spousal support, which stipulated provisions were incorporated in the divorce decree.

Child support had a phase-out provision, as did spousal support, both tied to a date certain. The spousal support also was cut if loved-once stopped homeschooling, and ceased altogether if loved-once remarried.

Judge Gerber: “The superior court ordered that the support payments be withheld from petitioner’s earnings. Under Federal law, generally, no more than a percentage of an employee’s disposable income may be withheld for support. Because of that limitation, petitioner made the remainder of the support payments by check or in cash.” 2015 T. C. Sum. Op. 25, at p. 4. Josh was able to substantiate what he claimed he paid.

Josh claims alimony (deductible), IRS claims child support (not), and Josh petitions.

The usual cases are clearly child-contingent (leaves school, reaches age 18, etc.). But here the issue is diminution of loved-once’s earning capacity.

“Petitioner and his former wife entered into the agreement that she would homeschool their child with the explicit understanding that their decision would cause financial hardship for her because she would not be able to work while performing the schooling. Under the terms of the written agreement and their understanding, it was solely within his former wife’s discretion as to whether she would go back to work or continue homeschooling their child. During the seventh month of the agreement under the divorce order, the former wife requested increased spousal support payments from petitioner, but he was unable or unwilling to pay more. Hence, petitioner’s former wife decided to return to work, and therefore the child was no longer homeschooled. That did not mean that the child was not schooled, because the child continued to be schooled, albeit at a different location, i.e., public school. Accordingly, the contingency was not whether the child discontinued school, but whether petitioner’s former wife was willing to make financial sacrifices by not working so as to provide the schooling.” 2015 T. C. Sum. Op. 25, at pp. 8-9.

Now, family lawyers, as Judge Holmes would say, pay attention.

“There is a clear and direct relationship between the amount of spousal support payments and his former wife’s choice to work. There was no contingency that depended on the child, who continued to go to school, albeit a different school. Under these circumstances the reduction in payments to his former wife was a reduction in alimony. We note that the child support remained at $1,200 both before and after the situs of the child’s school changed. We also note that the spousal support went from $3,800 to $1,900 after petitioners’ former wife went back to work. Finally, we note that respondent agrees that the $1,900 paid to petitioner’s former wife, both before and after the child changed schools was ‘alimony’”. 2015 T. C. Sum. Op. 25, at pp. 9-10.

Judge Gerber goes on to correct Josh’s arithmetic, as he took too many months’ worth of alimony in his numbers. But the one extra month he gets hit with is less than the five-and-ten chop IRS wants to hit him with, and much less than IRS’s somewhat idiosyncratic deficiency numbers. And Josh acted in good faith.

I might also add, Josh did better than a lot of lawyers.