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Same-sex marriage filing issues

By Kay Bell ·
Tuesday, April 26, 2011
Posted: 12 pm ET

Married couples usually have two choices when deciding which tax-filing status to use, married filing jointly or separately.

But it's a bit more complicated for spouses in same-sex marriages.

In the states where such marriages are legal, gay and lesbian married couples typically are afforded the same filing status options as their heterosexual counterparts.

On Internal Revenue Service forms, however, same-sex couples cannot select either version of married. Their marriages are illegal for federal purposes under the Defense of Marriage Act, so they must choose single or, if dependents are involved, head of household.

Or the couples could Refuse to Lie. That's the name, and suggestion, of an organization that recommends gay and lesbian couples make their state-sanctioned marriages clear on their federal returns, too.

The group takes its name from the statement in the tax return signature area that every taxpayer avers: "Under penalties of perjury, I declare that I have examined this return and accompanying schedules and statements, and to the best of my knowledge and belief, they are true, correct, and complete."

By forcing same-sex married couples to swear on their 1040s that they are single, Uncle Sam is essentially suborning perjury, argues the group.

Of course, since under federal law the couples aren't married, then for federal tax-filing purposes, they aren't lying. Still, you get the point.

Same-sex couples hope that the IRS and lawmakers in Washington, D.C., get the point, too.

They want the same federal tax-filing treatment for their marriages -- not just for the nondiscrimination issue, but also for financial reasons. Many same-sex couples say that being unable to file federal returns jointly costs them at tax time.

So Refuse to Lie suggests same-sex filers put an asterisk by the single box and at the bottom of the form indicate that they are only single under the Defense of Marriage Act.

Another option is to include an attachment to the return. The group's website offers a sample statement, which also would include the taxpayer's name and Social Security number:

The above named taxpayer married a person of his/her same sex in [place] in [year]. The taxpayer has not filed this return as "married" (either jointly or separately) solely because the Defense of Marriage Act (DOMA) defines marriage as a legal union between a man and a woman. By filing as "single," the taxpayer is in no way disavowing his/her marriage.

Or, says the group, same-sex couples could file separate single taxpayer returns as required by the IRS and attach Form 843, Claim for Refund and Request for Abatement.

"If you state on Form 843 that your claim is based on the unconstitutionality of DOMA, which is an issue pending in current litigation, it is more likely that the IRS will do nothing until the issue is finally determined," Patricia Cain, a law professor at Santa Clara University, told Refuse to Lie.

Then if the courts ultimately deem the federal prohibition against same-sex marriages unconstitutional, the taxpayers should be entitled to the refund on the amended return.

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