Per the Colorado child support statute, gross income includes “rents”, i.e. rental income. C.R.S. 14-10-115(5)(a)(I)(J). But surprisingly, there is little judicial guidance as to how exactly rental income should be calculated for purposes of child support or alimony. We last wrote about rent and family support exactly 3 years ago, when the Colorado Court of Appeals held that a court could not impute rental income to a party who allowed his girlfriend to live with him in the primary residence rent-free.
Deduct “Ordinary & Necessary Expenses” from Rental Income
One recurring issue is whether the full mortgage payment should be deducted from the rental income received as an “ordinary and necessary” business expense, or just the interest/insurance/taxes portion (i.e. do not deduct the principal payment). The child support and maintenance statutes both have similar provisions:
“For income from self-employment, rent, royalties, proprietorship of a business, or joint ownership of a partnership or closely held corporation, ‘gross income’ equals gross receipts minus ordinary and necessary expenses, as defined in sub-subparagraph (B) of this subparagraph (III), required to produce such income.”C.R.S. 14-10-115(8)(c)(III)(A) (Emphasis added).
See also the maintenance statute, C.R.S. 14-10-114(8)(c)(III)(A).
The next section basically says it’s up to the trial court to determine which business expenses are “ordinary and necessary” by saying such expenses excludes “any other business expenses determined by the court to be inappropriate for determining gross income for purposes of calculating child support.” C.R.S. 14-10-115(8)(c)(III)(B).
Is Principal Repayment Deducted from Rental Income as Expense?
As we discuss in our rental income article in the Colorado Family Law Guide, the IRS disallows the deducting the principal portion of a mortgage payment as a business expense because those payments increase the person’s net worth by paying down a liability (similarly, the principal portion of loan repayments are not included as expenses on profit & loss statements).
But in the absence of clear appellate authority, the attorneys at Graham.Law have seen judges go both ways on this issue. Sometimes a judge will allow the full mortgage payment to be deducted from the rental income for purposes of calculating child support or alimony, under the theory that those funds are earmarked as part of the mortgage, and not available for that spouse’s living expenses, or as a source of funds to pay support.
At other times, we have seen judges follow the IRS guidelines and not allow the principal repayment to be deducted from rent, under the theory that while the payment is basically a “forced investment”, it does increase the spouse’s net worth. Moreover, in Burford the Colorado Supreme Court recognized that the increase in equity due to paying down a mortgage during marriage was a marital asset. Ignoring that mortgage paydown for purposes of determining income appears inconsistent.
In a recent unpublished decision from the Court of Appeals approved of a trial court not allowing the principal repayment portion of a mortgage to be deducted from rent as an “ordinary and necessary” business expense. In Geiler, the trial court found that the principal portion of the mortgage payments did not qualify as ordinary and necessary expenses for purposes of calculating child support.
In the absence of appellate guidance in Colorado, the trial court looked to out-of-state cases from Missouri and North Carolina. ¶ 16. The reasoning from one case which the trial court found persuasive was:
“mortgage principal payments should not be deducted from self-employment income as a business expense because a party should not be allowed to shield income by building equity in real estate that is not considered in calculating child support.”Geiler, ¶ 16.
The Colorado Court of Appeals did not exactly take a strong stand for or against this practice:
“We perceive no abuse of discretion by the magistrate in determining that the principal portion of the mortgage payment should not be deducted from husband’s Tortuga income as an ordinary and necessary business expense.”Geiler, ¶ 16.
Instead, the court basically said that since the Colorado child support statute did not expressly identify whether principal mortgage payments were an “ordinary and necessary” expense, “the court has discretion to determine whether to deduct a mortgage payment from rental income.” ¶ 17.
The takeaway? We still have no clear judicial guidance. The Court of Appeals endorsed the trial court declining to deduct the principal repayment as a business expense, but makes clear that since the issue is in the discretion of the court, had the trial court gone the other way, that too would have been fine.
Rental Income & Colorado Family Support FAQ
Is Rent Considered Income for Colorado Child Support?
Yes. Under the Colorado child support statute, gross income includes “rents”, after deducting the “ordinary and necessary expenses” to produce the rent.
Are Mortgage Principal Payments Deducted From Rent as “Ordinary & Necessary Expenses”?
That depends. The Colorado Court of Appeals has held it is within the discretion of the family law judge how much of a mortgage payment should be deducted from rental income.
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