A gay marriage income tax mess

Any time Washington issues a decree, you can bet complications, conflicts and costs will follow. The latest example involves the IRS announcement last week that legally married gay couples may file joint income tax returns, even if they currently live in states where gay marriage is illegal.

Income tax preparers and attorneys, rejoice.
If America didn’t have 50 separate states with separate constitutions and laws, such an announcement might be straightforward.

But this will be enough to make some people rue the day 100 years ago when the federal income tax became legal.

Of course, you can’t entirely blame the IRS. The U.S. Supreme Court set the stage for tax confusion when it struck down the Defense of Marriage Act earlier this year, but left standing a part that lets states define marriage.

I’m not suggesting they should have struck that part down, as well. It’s clear, however, that next April 15 could be interesting in much of the land.

Between now and the end of the year, many states in which gay marriage remains illegal face a choice. Either find a way to deal with this as smoothly as possible, or face a situation in which gay couples who have obtained marriage licenses in other states are forced to file separate state income tax forms requiring them to use figures from their joint federal income tax forms.

It won’t work.

You simply can’t file jointly on the federal level and separately in your home state if you have to reference one form on the other.

The Tax Foundation, a Washington research institution, says 24 states currently fall into the category of not allowing gay marriage and requiring tax filers to reference federal returns on their state tax forms. Some other states do not require such a thing, and others still have no income tax. The graphic above, by the Tax Foundation, shows how this breaks out.

Wisconsin already has tried to deal with this by coming up with a separate tax form, known as Schedule S. This will allow filers to separate their federal returns for use with their state returns. The only distinct disadvantage is that people who do this must file on paper, not electronically.

But the Milwaukee Journal-Sentinel recently interviewed an accountant and attorney who said people are bound to challenge this and other inequities in court. Whether they prevail is another matter, considering Wisconsin’s constitution, like those in many other states, prohibits gay marriage, which makes it impossible for the state to recognize it in its tax laws.

But such cases may find their way up to the Supreme Court, where a majority appears ready to declare a gay marriage right.

The Tax Foundation lauds Wisconsin’s Schedule S and suggests the other 23 states in this boat could do the same or provide a scheme that allows such couples to evenly split their federal returns down the middle. States that allow domestic partnerships or civil unions could create a separate joint filing status for those couples, it says. It does not recommend separating federal and state tax returns entirely, which it said would be expensive and cumbersome for taxpayers.

Meanwhile, the Chicago Tribune quoted Jenner & Block tax attorney Gail Morse as saying Congress could clarify the issue somewhat with a “Respect for Marriage Act,” that makes the federal tax rights of gay couples clear. Otherwise, a two-tiered system will remain in much of the land.

In related news, pigs still cannot fly. Congress isn’t about to pass such a thing.

It’s unclear how many couples will be affected by this problem. But the side story here is that anyone hoping for state federal tax laws to become simpler and less expensive to comply with just found another reason for pessimism.

About the Author

Jay Evensen

Jay Evensen is the Senior Editorial Columnist for the Deseret News. He has 32 years of journalism experience covering politics and a variety of other assignments at news organizations ranging from United Press International in New York City to the Las Vegas Review-Journal and the Deseret News, where he has worked since 1986. During that time, he has won numerous local, regional and national awards. Most recently, he was given the Cameron Duncan Media Award, given annually in Washington, D.C., by the advocacy group RESULTS, to the journalist judged to have done the most to further the cause of the world's poorest people.


  1. Chas

    The real problem was the court ruling that the federal government was somehow unable to define marriage for federal purposes. What a change in course that is from when the feds defined marriage for purposes of the federal territory of Utah and the court found all kinds of reasons why that was proper and needful.

    The obvious solution at this point is that the feds should define marriage based on the laws of the State of residency, not on whether a marriage license has been granted in some other State. If a homosexual couple wants to file joint returns, they should get married AND RESIDE in a State that legally recognizes their union as a “marriage”. Each State gets to define marriage and the feds go with the definition in effect in the tax filers’ State of primary residency.

    The same folks who got very upset about Utahns contributing time or money to pass Prop 8 are now making very clear why Utahns did have an interest in the marriage laws of California as activists try to leverage those laws for force Utah and other States to accept and grant benefits to marriages that violate our public laws, standards, mores, and constitutions.

    • RanchHand

      The only marriage you have any interest in is your own. You have no business whatsoever interfering in somebody else’s marriage.

      • truthteller

        Agreed. Gay people don’t get to vote on (or otherwise interfere with) OTHER people’s marriages. Heterosexuals could (and should) do likewise.

    • truthteller

      “States’ rights” was always and ONLY the rallying cry of the prejudiced.

      Voting on OTHER PEOPLE’S (formerly?) “unalienable” rights to liberty and the pursuit of happiness (which is what Prop 8 was) is an obscenity unworthy of the promises America makes to ALL people.

      And since when do State Constitution’s trump the Federal US Constitution – which guarantees everyone Equal Protections of the Law?

  2. contrarius

    I’ve been excited about this IRS ruling since the day it came out. No, not because it will make filing more complicated for some same-sex couples — but because it will make it even more difficult for states to continue ignoring the Full Faith and Credit clause of the US Constitution.

    States already recognize certain types of marriages that were performed in other states, even if those marriages are illegal within that state’s boundaries. For example, first cousins do not suddenly become unmarried if they cross state lines. States really don’t have any good argument for refusing to give the same recognition to out-of-state gay marriages. It is simple animus.

    By recognizing gay marriages across state boundaries, this IRS ruling just helps to hammer home the point that individual states ARE discriminating and enforcing inequalities in an unconstitutional manner.

    I can’t wait for more gay marriage cases to make it to the courts.

  3. Blue

    You really didn’t see this coming?

    State-sanctioned second class citizenship is _over_.

    Your own marriages will be just fine. If anything, marriages will be stronger because society has now fully embraced the idea that consenting adults mutually committing to love each other in sickness and in health, etc. with the blessing of government policy is good for society.

    It’s high-time we recognized that sexual orientation is not a valid basis for denying constitutionally protected rights.

  4. RanchHand


    I have to ask you two questions and please, answer honestly.

    1) Did anybody vote on whether or not you were allowed to marry the person of your choice?

    2) When you enter another state, is your marriage still valid? (If you answer “yes”, then I have another question: Why shouldn’t a gay couple’s marriage be valid when they cross state lines if yours is still valid?)

  5. Truelinguist


    With respect, you fail to mention that before the Supreme Court ruling, gay couples in states with marriage equality faced the complications, conflicts and costs. For instance, a legally married couple in, say, Iowa, had to file as a married couple on their state income tax form, but were forced to file as single unrelated individuals on the IRS forms– something that for many of us was simply not feasible since, like most married couples, our finances are inextricably combined. It was untenable. Now couples who marry and live in marriage equality state are treated the same as all other married couples, which to my mind is the only rational solution.

    I see a way out: states should accept the Full Faith and Credit clause of the U.S. Constitution and recognize marriages from other states– as they virtually always do except when it comes to their gay citizens. That would solve all the complications you list.

    It would also have the added virtue of being fair to all married couples everywhere.

  6. truthteller

    Re: “A gay marriage income tax mess”

    Actually, it’s an ‘unequal treatment before the secular law “mess”. Once equal marriage is the law of the land in all 50 states, any “mess” gets cleared up totally.

  7. Dan B

    This is the same situation as last year except reversed. It used to be messy for gay spouses in states they COULD file a joint tax return (since they couldn’t federally) now it’s messy in states they CAN’T.

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