The fact of the matter is that the Internal Revenue Service will continue to define marriage for United States Taxpayers everywhere in that only one man and one woman married to each other can file an income tax return with the filing status of married/joint. This filing status, looked upon by the Service as one taxpaying unit is entitled to substantial tax benefits over and above all other filing statuses be it Single, Head of Household, Married/separate, or Widow. So from an income tax perspective today’s supreme court decision is really in my opinion little more than kabuki theater.
If you check out the IRS’ Interactive Tax Assistant to determine your filing status you will find it to be incredibly disingenuous if not unilaterally misleading as the Instructions for the 2012 IRS Form 1040 Income Tax Return clearly state under under filing status the following.
“For federal tax purposes a marriage means only a legal union between a man and a woman as husband and wife, and the word “spouse” means a person of the opposite sex who is a husband or a wife.”
In my own humble opinion until you can check the box Married/Joint on an income tax return (box #2 under filing status) you are unfortunately NOT married for federal income tax purposes regardless of the Supreme Court’s decision today and I find it impossible at this time or any time in the near future that the IRS will be compelled to change their definition of the Married Filing Joint (MFJ) filing status.
A husband and wife filing jointly report their combined income and deduct their combined allowable expenses on one return. They can file a joint return even if only one had income or if they did not live together all year. However, both persons must sign the return. Once you file a joint return, you cannot choose to file separate returns for that year after the due date of the return.
There are of course some pitfalls to the Married Filing Joint (MFJ) filing status. If you file a joint return, both you and your spouse are generally responsible for the tax and interest or penalties due on the return. This means that if one spouse does not pay the tax due, the other may have to. Or, if one spouse does not report the correct tax, both spouses may be responsible for any additional taxes assessed by the IRS.
Enrolled with the United States Treasury Department to practice before the IRS, governed by rules stipulated in United States Treasury Circular 230. As a Federally Authorized Tax Practitioner and a tax appeals specialist my Enrolled Agent License #85353 is issued by the United States Treasury. With this license I work for U.S. taxpayers everywhere to resolve tax matters and de-escalate stress about taxes or tax disputes for individuals and corporations with federal and state issues.
7 comments on “United States Supreme Court DOMA Throw Down – Progress or Kabuki Theater?”
The fact of the matter is, the author of the linked piece seems to know nothing about the law or the sources upon which the IRS bases its instructions, publications and other pronouncements.
The 1040 instructions he mentions were created as a direct result of DOMA. DOMA has been declared unconstitutional. The related instructions are null and void. Despite that author’s beliefs to the contrary, I am confident that the instructions regarding who is required to use one of the married filing statuses will be updated to reflect current law.
Actually Mr. Brown as opposed to assailing my professional acumen you should have spent time researching an educated response. The IRS’ definition of MFJ filing status was in place well before DOMA and is governed by completely separate and distinct statutes in the CFR making your assertion above in these regards unilaterally incorrect.
The US Supreme Court decisions yesterday as they may concern future income tax filings do little more than create an opportunity for the President to instruct the Treasury and subsequently the IRS to consider redefining MFJ filing status for income tax filing purposes but the definition change will probably not happen without an Act of Congress as the IRS has a long history of reticence to change under ANY President.
The fact of the matter is that nobody knows for certain at this point what the future will bring from all this for future income tax filing purposes. For the time being all we as tax practitioners have to go on is the current IRC including the current definition of MFJ filing status. As such your confidence I believe is rooted in bravado and should be held in check.
I must agree with Mr. Brown. The regulations get their authority from the IRC, coupled with any clear interactions with other laws. DOMA was one such other law. With DOMA Section 3 stricken, the IRS no longer has any authority to define marriage in ways that clearly contradict state laws. They can deal with gray areas, such as the case where a couple was married in one state but reside in a state that doesn’t recognize the marriage. But they cannot outright reject same-sex marriage – there’s no authority in law for that anymore. Just as there was no need for DOMA to explicitly mention every single law and regulation that was affected, there was no need for the Supreme Court to enumerate every single law and regulation that is now invalid.
The existing regulations are no longer legally valid. I trust, that as an EA, you’re already aware that the forms themselves have virtually no legal standing. As far as I know, there’s no obligation on the IRS to amend the regulations in any particular time frame, since the regulation process can be expensive and time consuming. It wouldn’t be the first time that there’s an obsolete law or regulation left on the books, yet routinely ignored because everyone knows it’s invalid. But since the IRS attorneys understand federal law, and since the IRS does try to respond to public issues, I’d expect them to approve and release detailed guidance (a much faster process) in the near future, dealing with some of the real questions, breezing past this nonsense.
I should add that both Bill and I missed the obvious proof: Windsor was explicitly a federal tax case. The SC upheld the appeals court, the appeals court upheld the District Court, and the District Court explicitly awarded Ms. Windsor a return of the estate tax that had been paid, plus interest and costs. While the District Court decision, by itself, might not have had precedential, the subsequent Appeals and Supreme Court decisions do. So if the IRS can no longer reject same-sex marriages for the estate tax, it’s absurd to suggest they can do so for any other taxes.
I should have focused on the issue at hand rather than speculate on the qualifications of the author. I’ve been proved wrong too often myself to be able to justify my intemperate remarks. I apologize.
No worries – all is good. It is a heated issue. Apology accepted. I hope you are correct but see a fight on the horizon from the IRS in these very regards from my sources inside the Service. I hope they are incorrect. Nevertheless the focus of my message is that practitioners adhere to the existing regulations until those regulations actually change.
I believe it is nearly certain that same-sex couples that have a marriage in a marriage recognition state will not only be allowed, but be required, to file MFJ or MFS for tax year 2013. While it is true that the IRS is often slow to act with true authority without an act of Congress, this doesn’t mean that changes don’t happen procedurally. A good example is the recent changes in filing requirements for same-sex couples living in community property states. Since 2010 registered domestic partners in Washington and Nevada and same-sex married couples in California have been required to file under community property income splitting rules, despite the fact that there is no authoritative guidance and no action from Congress.
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