Tuesday, November 23, 2010
The Internal Revenue Code provides numerous special provisions for spouses. At the current time none of these provisions applies to same-sex couples. Even legally married same-sex couples, residing in states where their marriages are recognized, cannot claim spousal status under the federal tax laws. The Defense of Marriage Act (DOMA) prohibits the federal government from recognizing same-sex couples as spouses. Until DOMA is either repealed or found unconstitutional, the tax treatment of many same-sex couples is a subject of much confusion and contention.
I have been thinking about these issues for a long time and am creating this blog to enable me to share those thoughts more broadly with tax practitioners who are interested in this topic. As issues arise or as questions occur to me, I will write individual blog posts on each issue or question. Short "white papers" dealing with specific topics in more detail will be linked to the blog. And important IRS rulings and cases that affect tax questions for same-sex couples will also be linked.
The issues and questions likely to be covered include more than how couples are expected to file their federal tax returns. Recently, for example, the IRS has confirmed that the 1930 Supreme Court opinion in Poe v Seaborn applies to same-sex Registered Domestic Partners (RDPs) in California (and by extension of logic to RDPs in Washington and Nevada as well). See 2010 CCA on this point. Applying Seaborn raises a number of subsidiary issues – like how to determine whether an item of income is separate or community and whether or not agreements that opt out of the community property system are subject to gift tax.
As I work through these issues, I’ll post my conclusions on this blog. The conclusions will be about abstract principles of law and will raise policy questions. They are not intended as tax advice to be applied to specific cases. But for practitioners who wish to do further research about specific cases, this blog may be a helpful starting point.