Can perdiem travel pay be included in child support?

Answer 1

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=il&vol=app/2002/2010786&invol=3

STATE OF Louisiana, DEPARTMENT OF

SOCIAL SERVICES IN THE INTEREST OF

D. F.

VERSUS

L. T., JR.

MAY 31, 2005

CLARENCE E. MCMANU

JUDGE

http://www.fifthcircuit.org/OPINIONS/OIP_2005/05_2005/04ca1455.pdf

On January 1, 2005, the two appeals were consolidated in this Court for

determination of whether the military allowances for housing and subsidies are to

be included in Taylor's gross income for the calculation of child support to his

children, Devon Francois and Justin Taylor. We affirm the trial court's ruling that

these allowances are not to be included in income.

DISCUSSION

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The guidelines for determination of child support are set forth in La. R.S.

9:315, et seq. The schedule of basic child support obligations contained in La. R.S.

9:315.19 relies on the combined adjusted monthly gross income. According to La.

R.S. 9:315C(4), as it read on the date these matters were filed, gross income is

defined as follows:

(4) "Gross income" means:

(a) The income from any source, including but not limited to

salaries, wages, commissions, bonuses, dividends, severance pay,

pensions, interest, trust income, recurring monetary gifts, annuities,

capital gains, social security benefits, workers' compensation benefits,

unemployment insurance benefits, disability insurance benefits, and

spousal support received from a preexisting spousal support

obligation;

(b) Expense reimbursement or in-kind payments received by a

parent in the course of employment, self-employment, or operation of

a business, if the reimbursements or payments are significant and

reduce the parent's personal living expenses. Such payments include

but are not limited to a company car, free housing, or reimbursed

meals; and

(c) Gross receipts minus ordinary and necessary expenses

required to produce income, for purposes of income from selfemployment,

rent, royalties, proprietorship of a business, or joint

ownership or a partnership or closely held corporation. "Ordinary and

necessary expenses" shall not include amounts allowable by the

Internal Revenue Service for the accelerated component of

depreciation expenses or investment tax credits or any other business

expenses determined by the court to be inappropriate for determining

gross income for purposes of calculating child support.

(d) As used herein, "gross income" does not include:

(i) Child support received, or benefits received from public

assistance programs, including Family Independence Temporary

Assistance Plan, supplemental security income, food stamps, and

general assistance.

(ii) Per diem allowances which are not subject to federal

income taxation under the provisions of the Internal Revenue Code.

(iii) Extraordinary overtime including but not limited to income

attributed to seasonal work regardless of its percentage of gross

income when, in the court's discretion, the inclusion thereof would be

inequitable to a party.

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(iv) Any monetary gift to the domiciliary party when the

objective of the gift is to supplement irregular child support payments

from the nondomiciliary party.

Taylor is paid a "base pay", or salary, as well as a basic allowance for

housing and a basic allowance for subsistence. The basic allowance for housing is

paid to qualifying military personnel to obtain housing when the military is unable

to provide the housing. The basic allowance for subsistence is paid to qualifying

military personnel to offset the cost of food for those who live off of the military

base. These military allowances are non-taxable.

In finding that these military allowances shall not be counted as income for

the calculation of child support, the trial court noted that the Internal Revenue

Service does not tax the basic allowance for housing or the basic allowance for

subsidies paid to military personnel. The trial court found that this is consistent

with La. R.S. 9:315, which provides that gross income does not include per diem

allowances which are not subject to federal income taxation under the provisions

of the Internal Revenue Code. The trial court correctly noted that the military

allowances in this case are not per diem allowances. However, the Internal

Revenue Code does not tax the basic allowance for subsidies or the basic

allowance for housing, just like per diem allowances, are not subject to federal

taxation.

http://www.supportguidelines.com/glines/la_cs.HTML

LOUISIANA REVISED STATUTES

TITLE 9. CIVIL CODE ANCILLARIES

CODE BOOK I--OF PERSONS

CODE TITLE V--DIVORCE

CHAPTER 1. DIVORCE

PART I-A. CHILD SUPPORT

SUBPART A. GUIDELINES FOR DETERMINATION OF CHILD SUPPORT

(d) As used herein, "gross income" does not include:

(i) Child support received, or benefits received from public assistance programs, including Family Independence Temporary Assistance Plan, supplemental security income, food stamps, and general assistance.

(ii) Per diem allowances which are not subject to federal income taxation under the provisions of the Internal Revenue Code.

(iii) Extraordinary overtime or income attributed to seasonal work regardless of its percentage of gross income when, in the court's discretion, the inclusion thereof would be inequitable to a party.