Appeal from the Order entered July 22, 1986 in the Court of Common Pleas of Philadelphia County, Family, No. 77-06772.
Norman A. Oshtry, Philadelphia, for appellant.
Dennis P. Talty, Philadelphia, for appellee.
McEwen, Johnson and Hoffman, JJ. Johnson, J., files a dissenting opinion.
[ 369 Pa. Super. Page 85]
We are here called upon to determine whether arrearages, which had been created solely as a result of the retroactive application of a support order, constitute "past-due support" as that term is used in Section 464 of the Social Security Act, subjecting the obligor to the provisions of the federal income tax refund intercept statutes. The distinguished Judge Jerome A. Zaleski concluded that such arrearages do not constitute "past-due support" and cannot form the basis upon which to intercept a federal income tax refund owed to the obligor. We agree.
This appeal has been taken from an order which granted the petition of appellee to delete an Internal Revenue Service intercept which had been placed upon his federal income tax refund check as a result of alleged arrearages in child support payments owed to appellant.
Appellee originally became subject to a court order for support when the court, on September 15, 1978, directed that he pay the sum of $85.00 per week for support of two
[ 369 Pa. Super. Page 86]
children. The order was subsequently modified by agreement to $125.00 per week, effective February 27, 1980. When, four years later, appellant sought a further increase, the court, on December 28, 1984, entered an order increasing the support obligation to $400.00 per week. Since the increased order was, pursuant to Pa.R.C.P. 1910.17, deemed effective as of the date of the filing of the petition to modify, specifically, March 2, 1984, arrearages in the amount of $11,825.00 were immediately created.*fn1 As a result, the court ordered appellee to pay, in addition to the sum of $400.00 per week for support, the sum of $10.00 per week toward the arrearages which had been created by the modification order.
Ten months later, in October 1985, appellee was notified by the IRS Intercept Unit of the Domestic Relations Branch of the Court of Common Pleas of Philadelphia County that his federal income tax refund check would be intercepted and that any refund money seized would be used to offset the $14,255.00 arrearages for support. Appellee filed a petition in the Court of Common Pleas requesting the court to delete the intercept, asserting that the intercept was improper because the arrearages were not a result of appellee's failure to make any of his child support payments. Rather, he asserted, the arrearages existed solely because the December 28, 1984, support order had been given retroactive effect. The court, after argument, granted appellee's petition to delete the intercept.*fn2
Appellant contends that it was error for the hearing court to delete the IRS intercept, asserting that the intercept
[ 369 Pa. Super. Page 87]
was proper because the statute applies, without exception, to all arrearages, whether created as a result of the retroactive application of a support order or from a failure to timely remit amounts due under the order.
Section 464(a)(2)(A) of the Social Security Act directs the Secretary of the Treasury to "intercept" federal income tax refund checks payable to persons ...