Married Same-Sex Couples Uncertain about Taxes

By Savage, David G. | The Charleston Gazette (Charleston, WV), July 13, 2013 | Go to article overview

Married Same-Sex Couples Uncertain about Taxes


Savage, David G., The Charleston Gazette (Charleston, WV)


WASHINGTON - Same-sex couples and their tax advisers are anxiously waiting for the Obama administration to answer a key regulatory question left unresolved by the Supreme Court when it struck down the federal Defense of Marriage Act.

At issue is whether legally married same-sex couples will receive equal tax and Social Security benefits in all 50 states - or only in the 13 states where such marriages are legal.

"The people in limbo are those who live in a state where their marriage is not recognized," said Nanette Lee Miller, an accountant in San Francisco who advises same-sex couples. "The IRS is discussing this, but it's still up in the air."

The Supreme Court's opinion June 26 announced a clear principle, but it did not say precisely how it should be applied. The federal government must give equal treatment to "those persons who are joined in same-sex marriages made lawful by the state," Justice Anthony Kennedy said. The decision is "confined to those lawful marriages," he added.

But federal laws and regulations have differing rules for determining a lawful marriage. While some agencies look to the "place of celebration" - where the couple's marriage took place - others look to the law in the state of their current "residence" or "domicile."

That creates a complication that Justice Antonin Scalia highlighted in his dissent. "Imagine a pair of women who marry in Albany (N.Y.) and then move to Alabama, which does not 'recognize as valid any marriage of parties of the same sex.' When the couple files their next federal tax return, may it be a joint one? Which state's law controls, for federal-law purposes: their state of celebration [which recognizes the marriage] or their state of domicile [which does not]?"

Kennedy's majority opinion does not specify.

Shortly after the court's ruling, a coalition of gay rights groups put out an "After DOMA" advisory memo that included a cautionary note: "If you live in a state that discriminates against married same-sex couples, you should be aware that the Supreme Court decision striking down part of the federal so-called Defense of Marriage Act does NOT mean that your state must respect your marriage or that you will be eligible for all marriage-based federal benefits."

Gay rights advocates urged the Obama administration to adopt the "place of celebration" rule for all federal benefits, and they appear to have the president on their side. …

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