Can perdiem travel pay be included in child support?
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=il&vol=app/2002/2010786&invol=3STATE OF LOUISIANA, DEPARTMENT OFSOCIAL SERVICES IN THE INTEREST OFD. F.VERSUSL. T., JR.MAY 31, 2005CLARENCE E. MCMANUJUDGEhttp://www.fifthcircuit.org/OPINIONS/OIP_2005/05_2005/04ca1455.pdfOn January 1, 2005, the two appeals were consolidated in this Court fordetermination of whether the military allowances for housing and subsidies are tobe included in Taylor's gross income for the calculation of child support to hischildren, Devon Francois and Justin Taylor. We affirm the trial court's ruling thatthese allowances are not to be included in income.DISCUSSION-4-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 isdefined as follows:(4) "Gross income" means:(a) The income from any source, including but not limited tosalaries, 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, andspousal support received from a preexisting spousal supportobligation;(b) Expense reimbursement or in-kind payments received by aparent in the course of employment, self-employment, or operation ofa business, if the reimbursements or payments are significant andreduce the parent's personal living expenses. Such payments includebut are not limited to a company car, free housing, or reimbursedmeals; and(c) Gross receipts minus ordinary and necessary expensesrequired to produce income, for purposes of income from selfemployment,rent, royalties, proprietorship of a business, or jointownership or a partnership or closely held corporation. "Ordinary andnecessary expenses" shall not include amounts allowable by theInternal Revenue Service for the accelerated component ofdepreciation expenses or investment tax credits or any other businessexpenses determined by the court to be inappropriate for determininggross income for purposes of calculating child support.(d) As used herein, "gross income" does not include:(i) Child support received, or benefits received from publicassistance programs, including Family Independence TemporaryAssistance Plan, supplemental security income, food stamps, andgeneral assistance.(ii) Per diem allowances which are not subject to federalincome taxation under the provisions of the Internal Revenue Code.(iii) Extraordinary overtime including but not limited to incomeattributed to seasonal work regardless of its percentage of grossincome when, in the court's discretion, the inclusion thereof would beinequitable to a party.-5-(iv) Any monetary gift to the domiciliary party when theobjective of the gift is to supplement irregular child support paymentsfrom the nondomiciliary party.Taylor is paid a "base pay", or salary, as well as a basic allowance forhousing and a basic allowance for subsistence. The basic allowance for housing ispaid to qualifying military personnel to obtain housing when the military is unableto provide the housing. The basic allowance for subsistence is paid to qualifyingmilitary personnel to offset the cost of food for those who live off of the militarybase. These military allowances are non-taxable.In finding that these military allowances shall not be counted as income forthe calculation of child support, the trial court noted that the Internal RevenueService does not tax the basic allowance for housing or the basic allowance forsubsidies paid to military personnel. The trial court found that this is consistentwith La. R.S. 9:315, which provides that gross income does not include per diemallowances which are not subject to federal income taxation under the provisionsof the Internal Revenue Code. The trial court correctly noted that the militaryallowances in this case are not per diem allowances. However, the InternalRevenue Code does not tax the basic allowance for subsidies or the basicallowance for housing, just like per diem allowances, are not subject to federaltaxation.http://www.supportguidelines.com/glines/la_cs.HTMLLOUISIANA REVISED STATUTESTITLE 9. CIVIL CODE ANCILLARIESCODE BOOK I--OF PERSONSCODE TITLE V--DIVORCECHAPTER 1. DIVORCEPART I-A. CHILD SUPPORTSUBPART 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.
