Tax Deductiblility of Attorneys Fees
A person may deduct attorneys fees related to tax advice under IRC 212(3). It will not benefit a client who wants to deduct a portion of fees paid to the divorce attorney if the divorce attorney excludes the giving of tax advice. Many attorneys assert a clause in the Marital Settlement Agreement similar to the following: "Each of the parties acknowledges that they have received no tax advice in connection with this Agreement from the aforementioned attorneys and each have been advised to seek independent tax advice from accountants or tax attorneys of their own individual choosing." If such language is included in the Marital Settlement Agreement, the client will be precluded from deducting fees paid unless attributed to the production of taxable income. Some areas that the divorce attorney generally gives advice having tax implications includes the following: tax implications of maintenance, tax impact of child support, the appropriate structuring of maintenance, tax deductibility of property division, tax implications of the sale of a principal residence, the transfer or award of stock options, the allocations of the dependency exemption in child tax credits, whether or not to sign a joint tax return, etc.
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