Katherine D. Black (Utah Valley University, Department of Accounting), Mary K. Black (J.D. 2012, BYU) & Julie M. Black (J.D. 2012, BYU) have published Earl v. Seaborn: Did the Fruit Fall Too Far From the Tree?, 131 Tax Notes 943 (May 31, 2011). Here is the abstract:

In 1948 Congress created the joint filing status to try to create tax equality between married couples in community and non-community-property states. Favored tax treatment for taxpayers in community property states was a result of the 1930 Supreme Court case Poe v. Seaborn. However, joint filing has created the marriage penalty and innocent spouse problems. Also, if same-sex marriages can jointly file, virtually everybody, except minors, could use the problematic filing status.

The tax benefits that are intended to help families with children frequently go to families without children because of their filing status and the income phase outs associated with the benefits. We should require all earners to file a tax return but allocate larger standard deductions and personal exemption amounts to each person. That would allow a taxpayer who can claim a dependent to get a greater deduction. Thus, we would give the ‘‘family tax benefits’’ intended to help children to families who actually have children.

We also give a step-up in basis of all community property on the death of a decedent, while only allowing a step-up in basis of half of those same assets to a surviving spouse in a non-community-property state. We should repeal Seaborn and all of the code sections that give favored treatment to taxpayers in community property states while denying those same benefits to similarly situated taxpayers in noncommunity- property states.

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