Anyone who is married and who files taxes could have seen this coming from a mile away. The Defense of Marriage Act was struck down by the Supreme Court last year, taking with it unfair tax discrimination against married same sex couples. Now, same sex couples who are legally married in one of the 19 states, Washington D.C. or another foreign jurisdiction can file federal taxes as married. This is true for same sex couples who are married but live in a jurisdiction that does not recognize that marriage.
But what about state taxes? That’s where it gets more tricky. Since each state has their own tax guidelines, there isn’t one blanket rule for same sex married couples. In those states that don’t allow same sex couples to marry, otherwise married couples have to file their state taxes separately.
It’s easy to see why this is unfair. Doing your taxes blows, so having to do your taxes twice doubly blows. It’s more than just inconvenience, though. There are increased accounting costs, and it’s a reminder that, from a public policy standpoint, same sex couples are at best only considered kind of married.
Two Kansas couples — Michael Nelson and Charles Dedmon, and Roberta and Julia Woodrick – aren’t taking this kind of discrimination sitting down. In Kansas, there is both a statute and a constitutional amendment banning marriages between same-sex couples. Because of this, it’s unsurprising that the state requires same sex couples to file taxes as non-married individuals. So these two legally married same sex couples have filed suit against the Kansas Department of Revenue.
The guidelines were issued back in October. The guidelines don’t care if you’re legally married in another jurisdiction. If you’re married to someone of the same sex, you have to file separately.
This causes some problems, plaintiffs argue. It’s possible that by filing as single, they are filing a fraudulent tax return, which is a felony. Additionally, they claim that there is an added cost to preparing two tax returns and that being forced to do so demeans their marriages.
It’s not just that the whole thing is totally unfair. The state might actually be breaking the law:
“We are simply asking the state to follow existing Kansas law,” said David Brown, the Lawrence attorney who filed the suit. “Kansas law requires the state to use federal definitions of marriage for tax purposes, but the Department of Revenue is refusing to comply. My clients are asking the courts to order the Department of Revenue to follow the law.”
I’m not a tax expert by any means, but this does seem to be the case. According to statute, ”if both husband and wife are residents, and if their federal taxable income is determined on a joint federal return, their Kansas taxable income shall be reported and taxed on the basis of a joint Kansas income tax return.”
I have some hope that the state courts will find in favor of the plaintiffs. The courts have been the only branch of the state government in recent memory to be sympathetic to the plight of gay and lesbian couples. (The legislature can’t even muster the minuscule amount of courage it would take to repeal the state’s illegal sodomy law.) However, any adverse decision could be rendered moot by legislative action. Statutes can change. Faced with the option of either letting same sex couples file as married or taking time out of a busy schedule to change the law, I would not be surprised if lawmakers do the latter. It will certainly be an interesting case to watch.
Photo Credit: John Morgan via Flickr
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