Thursday, March 3, 2011
Prof. Patricia Cain, Santa Clara University School of Law, said she is advising same-sex married couples who would benefit from joint filing to file original returns as "single" or "head of household" and then file amended tax returns using Forms 1040X as "married filing jointly," providing an explanation in the appropriate place on the form. Not only will that allow the taxpayers to take their case to court if their refund is denied or potentially speed up a refund if -- in the meantime -- section 3 of DOMA is held unconstitutional, but Cain said she knows of individuals in same-sex marriages in Oregon and California who have filed amended returns jointly and actually received refunds.
"I don't think anybody is looking very closely," Cain said. "The computer says everything checks out; they don't have gender-coded 1040s."
Cain said she thinks someone in the government should be considering the potential transition issues. "If all of a sudden [section 3 of DOMA] is struck down, then it means it was never constitutional," Cain said. "Only the people who will benefit will file an amended return. No one else will, and so it will be a revenue loss for the government." That is so even though the Congressional Budget Office found in 2004 that recognizing same-sex married couples as married for tax purposes would result in a net increase in federal revenue. [CBO, The Potential Budgetary Impact of Recognizing Same-Sex Marriages (June 21, 2004).]
Cain said she believes that the Supreme Court will take up the issue and that Holder's announcement will fast-track one of the DOMA cases to the Court. The most likely candidate would be Gill because it is the farthest along, Cain said.
Amy S. Elliott, IRS's Definition of Marriage -- Where It Stands Now, 2011 TNT 42-3 (Mar. 3, 2011). See also Patricia Cain, DOMA and the Internal Revenue Code, 84 Chi-Kent L. Rev. 481 (2009).