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Judge Awards Durational Maintenance and Forwards Decision to IRS

In his February 9, 2011 decision in PP v. KP, Justice Robert A. Bruno of Nassau County, providing the reader with the salient facts, reflected his balancing of the various factors and policies underlying a maintenance determination.

Justice Bruno had conducted a hearing on maintenance (and counsel fees) after the parties to this 24-year marriage stipulated to equitable distribution matters (the children of the parties were all emancipated).

The wife, 58, had been an airlines customer service representative for the last 10 years and was now earning $35,000 per year. However, the wife acknowledged that she received another $12,000 per year in rental income which she failed to report either on her tax returns or her Net Worth Statement.

The husband, 55, had been an airline mechanic for 30 years. He was now earning $100,795. Justice Bruno imputed another $15,000 per year for the rent-free apartment in which he resided. Moreover, the husband, too, acknowledged additional income: $6,000 per year in rental income which he failed to report either on his tax returns or his Net Worth Statement.

Justice Bruno awarded the wife $1,200 (taxable) per month for 36 months. The Court noted an absence of proof on the pre-commencement standard of living, and extensively analyzed and compared the incomes and expenses of the parties. Awarding maintenance limited in time, the Court held:

"Since the plaintiff is employed full time, in the same position she had during the marriage, received a large distributive award and has assets of approximately $500,000.00, this is a more appropriate case for durational maintenance".

More troubling to the Court were the parties' admissions that each of them had excluded rental income from 2009 Form 1040 tax returns. Neither claimed to be exempt from paying taxes, nor to have any exclusion or other justification for failing to report this income.

"Faced with these candid admissions, this Court believes it appropriate to forward a copy of this decision and order to the United States Internal Revenue Service for their review".

In making the decision to "report" the couple, Justice Bruno relied on former Justice Jacqueline Silbermann's opinion in Hashimoto v. De La Rosa and now Appellate Division, Second Department, Associate Justice Ruth C. Balkin's decision in Beth M. v. Joseph M.

In Hashimoto, based upon the husband's sworn statement that he did not pay income taxes nor, as the wife alleged, file tax returns, Justice Silbermann forwarded a copy of the husband's affidavit and Net Worth Statement to the Internal Revenue Service. Moreover, troubled by the "disingenuous" certification of the husband's papers by his counsel, the Court believed it "appropriate to forward the affidavit and certification to the appropriate Departmental Grievance Committee for review".

Justice Balkin, as well, was troubled by the admissions in open court that the husband before her did not file income tax returns, nor pay income taxes. Recognizing the court's obligation to report admissions of possible tax evasion or fraud to the authorities, Justice Balin found it appropriate to forward a copy of the decision to the United States Internal Revenue Service for their review.

Particularly in light of the recent push toward Alternative Dispute Resolution, Justice Bruno's recent decision is a reminder that the court's obligation to report tax evasion to the authorites is but one more reason for parties to consider alternatives to litigation.

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