Monday, May 17, 2004
The TaxProf Discussion Group today had an interesting thread on whether gay and lesbian couples married in Massachusetts can file a joint federal tax return. The Defense of Marriage Act, of course, on its face would preclude a federal joint return because it directs that “[i]n determining the meaning of any Act of Congress … the word ‘marriage’ means only a legal union between one man and one woman as husband and wife.” Yet various Tax Profs raised a number of interesting questions, including whether:
• A couple could file jointly in April 2005 based on their belief that the DOMA violates the equal protection clause
• The IRS will have any effective way of identifying same-gender returns from Massachusetts couples
• Same-gender couples who file jointly need to disclose that fact on their returns
• The IRS could take inconsistent positions, ignoring the DOMA when there is a marriage penalty and applying the DOMA when there is a marriage bonus
For a great discussion of these and other issues, see Jim Maule’s Mauled Again Blog.
2 responses to “Can Married Mass. Gay Couples File Joint Tax Returns?”
Any consensus as to these issues? It seems to me that #3 depends on #1 — if DOMA is not unconstitutional, then the IRS should probably be able to require same-sex couples identify themselves as such. (I offer that tentative view as a doctrinal response, not a policy one.)
#4 seems to be the hardest to justify no matter what #1 turns out to be.
If DOMA is not unconstitutional, would this mean that on the death of the spouse first to die, the surviving spouse could not claim the marital deduction?