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Burnett v. Watson9/7/2005
NOT DESIGNATED FOR PUBLICATION
The appellant was found to be the natural father of appellee's minor child and was ordered to pay child support based on his income. On appeal, appellant argues that the trial court erred in computing his income for purposes of child support because it did not allow him a deduction recognized by the Internal Revenue Service for meals and entertainment. We affirm.
Arkansas Code Annotated § 9-12-312(a)(2) (Repl. 2002) provides that, in determining a reasonable amount of support, the judge shall refer to the most recent revision of the family support chart, and that it shall be a rebuttable presumption that the amount contained in the chart is the correct amount of child support to be awarded. This presumption will be rebutted only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate. The presumptive amount of child support to be paid pursuant to the family support chart is based on the payor's income. Arkansas Supreme Court Administrative Order Number 10 states in pertinent part:
Income means any form of payment, periodic or otherwise, due to an individual, regardless of source, including wages, salaries, commissions, bonuses, workers' compensation, disability, payments pursuant to a pension or retirement program, and interest less proper deductions for:
1. Federal and state income tax;
1. Withholding for Social Security (FICA), Medicare, and railroad retirement;
1. Medical insurance paid for dependent children; and
1. Presently paid support for other dependents by court order.
At the hearing, there was evidence that appellant worked as an over-the-road truck driver and that he is a W-2 employee rather than a 1099 independent contractor. Appellant had not yet filed his income tax return at the time of the hearing, but he introduced his W-2 form, which indicated that he was paid wages totaling $44,090.12, from which was withheld $4,910.84 for Federal income tax, $2,733.59 for Social Security , $639.31 for Medicaid, $1,219.91 for Pennsylvania state income tax, and $18.82 for miscellaneous local taxes.
In addition to the amounts paid in taxes, appellant cites 26 U.S.C. § 62(a)(2)(A) and argues that he was entitled to a deduction in the amount of $10,368.00 for per diem expenses for meals and entertainment because this deduction is allowed for federal income tax purposes in determining his adjusted gross income. We do not agree. Even assuming, without deciding, that appellant was in fact entitled to deduct his per diem expenses under 26 U.S.C. § 62, we have expressly held that section 62, which defines adjusted gross income, does not provide a sufficient basis for calculating income for the purpose of the Arkansas child support guidelines. Stepp v. Gray, 58 Ark. App. 229, 947 S.W.2d 798 (1997). On this record, we cannot say that the trial court erred in not allowing appellant to deduct meals and entertainment in calculating his income, and we affirm.
Affirmed.
Robbins and Vaught, JJ., agree.
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