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A Human Capital Theory of Alimony and Tax

The current taxation of alimony is a broken scheme. Severed from any strong theoretical mooring, it draws lines in the sand between property settlement, child support, and alimony. The lack of coherence between the substance of alimony in family law and the tax concept of alimony (“tax alimony”) could be justified on other policy grounds, however. Yet current law, which allows the payor a deduction under §215 and requires inclusion by the recipient per §71, is difficult to interpret, resulting in frequent litigation and costly noncompliance. In short, the current concept of tax alimony fails to satisfy any of the three traditional metrics of tax policy — fairness, efficiency, or administrability — while also failing to consistently track the substance of the payment under family law. This Article argues that returning to family law theory provides a way forward for reforming the tax treatment of alimony. Specifically, this Article argues that family law theories of alimony support keeping alimony in the tax base of the payor (repealing §215) and excluding alimony received from the base of the recipient (repealing §71).