TaxProf Blog

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.

Monday, May 17, 2004

Donald Tobin (Ohio State) raises the interesting question of whether the Bishop of Colorado placed his diocese’s tax exemption in jeopardy by telling Catholics in a pastoral letter that that “any Catholics who vote for candidates who stand for abortion, illicit stem cell research or euthanasia suffer the same fateful consequences [as the candidates who support these issues]?” According to the Bishop, such people “place themselves outside full communion with the Church and so jeopardize their salvation.” Professor Tobin writes:

[The Bishop] later goes on to say that “The Church never directs citizens to vote for any specific candidate,” but the letter certainly appears to be telling people to vote against Kerry.

This letter appears to me to be very close to the line. In its recent notice, Charities May Not Engage in Political Campaign Activities, the IRS indicated that:

“These organizations [501(c)(3)s] cannot endorse any candidates, make donations to their campaigns, engage in fund raising, distribute statements, or become involved in any other activities that may be beneficial or detrimental to any candidate. Even activities that encourage people to vote for or against a particular candidate on the basis of nonpartisan criteria violate the political campaign prohibition of section
501(c)(3).”

Isn’t [the Bishop’s] letter political activity detrimental to a candidate? It is not just saying good Catholics oppose these issues, but is instead saying that when a Catholic balances the pros and cons of a candidate, he risks salvation if he decides to vote for Kerry over Bush.

The Bishop has also picked specific issues that divide Bush and Kerry and makes reference to the coming election often. It is my understanding that the Church also opposes the death penalty, but that was not listed. (I have no idea of Kerry’s position on the Death Penalty) Do I risk salvation by voting for either Kerry or Bush? It appears the Bishop picked specific issues that Kerry opposes (or Bush supports) and basically indicated that only people who vote for Kerry “jeopardize their salvation.” (I understand he never mentions Kerry by name but it is impossible to read the letter and not get his meaning).

I am sure that the IRS will not take on the Catholic Church over this issue. But it seems to me to be another reason 1) not to exempt 501(c)s from campaign finance regulation and 2) not to rely on the IRS as an enforcement mechanism for campaign finance regulation.