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Discussion:MFJ Same Sex

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Discussion Forum Index --> Basic Tax Questions --> MFJ Same Sex


Discussion Forum Index --> Tax Questions --> MFJ Same Sex

Oncall (talk|edits) said:

26 June 2013
Filed a 2012 joint return for a same sex couple who got married in Washington and lived in Florida in 2012. Filed with disclosure and it was not accepted by the IRS.

Now that DOMA is overturned can I resubmit the return with MFJ status. Or does it matter that they lived in a state that does not have same sex marriage, Florida.

Ckenefick (talk|edits) said:

26 June 2013
Was it a 1040X?

Oncall (talk|edits) said:

26 June 2013
No, the return was never accepted as filed and was not resubmitted.

Ckenefick (talk|edits) said:

26 June 2013
Well, didn't each taxpayer then file separate returns...so as to comply with the tax law, as it then stood?

Oncall (talk|edits) said:

26 June 2013
Because they knew that the case was going before the supreme court and they would not be any later filing penalty, extension was filed.

Ckenefick (talk|edits) said:

26 June 2013
Gotcha. Then re-file it. Seems to me, no disclosure is needed this time around.


Oncall (talk|edits) said:

26 June 2013
My concern is whether the IRS will argue that marriage is a state matter and since they live in a state that does not recognize same sex marriage the MFJ is invalid. Maybe it is too early to be asking this question.

Ckenefick (talk|edits) said:

26 June 2013
And Ck's answer is: Yes.

If you're asking, "Hey, we were married in one state, but live in another, can we file jointly?"

The answer is 'yes.' Marriage is marriage, so long as it's lawful, and based on today's ruling, it is lawful even though it took place before today's ruling, IMO. My take is that DOMA is retroactively, a nullity.

Doug M (talk|edits) said:

26 June 2013
Sadly, didn't the Supreme Court actually punt?

From CNN: The court rulings, delivered in separate cases, mean that same-sex couples who marry in states where it's legal for them to do so will be treated the same as heterosexual married couples by the federal government when it comes to things like retirement benefits and taxes.

Ckenefick (talk|edits) said:

26 June 2013
Punt on what?

The Supreme Court ruled on what it was asked to rule on. See NMexEA's post in the other link.

Death&Taxes (talk|edits) said:

26 June 2013
But IRS will consider it like marital status rules, which are governed by state law. Separated people in some states can file as single people, but in other states, it takes a judge signing the divorce decree.

NBC news more or less said the same as CNN in a link I made in the other skein.

Doug M (talk|edits) said:

26 June 2013
They punted on the same sex couples who live in 35 states

Fsteincpa (talk|edits) said:

26 June 2013
If they were married in a state that recognizes marriage the feds should recognize it even if they move to a state that doesn't recognize.

Doug M (talk|edits) said:

26 June 2013
I think that there will be hundreds of unanswered questions until the courts rule again. I agree with Fred, and I think OnCall raises a very valid point.

I would not advise filing a return that is in violation of the law as it stands. While the extension was a very smart and wise thing to do, I don't think you will have an answer by 10/15

Ckenefick (talk|edits) said:

26 June 2013
Right. And I don't think they punted on anything. Tell me if I'm framing it right: Chris and Joy, heterosexual couple, are married in State X. Frank and Bill, a gay couple, are also married in State X. And State X recognizes both marriages as lawful, although Chris is somewhat of a Jackass. When all parties go to file federal tax returns, the IRS will recognize and accept Chris and Joy's joint return, but the IRS will reject Frank and Bill's joint return. The Supreme Court's ruling basically said that any federal law that accepts Chris and Joy's joint return must also accept Frank and Bill's joint return. That is, the federal government cannot treat these two couples differently, when they were afforded the exact same marital rights under state law.

What the Court didn't address, because the Court was not asked to address it, was a state law that prohibits marriage among gay couples.

Ckenefick (talk|edits) said:

26 June 2013
I would not advise filing a return that is in violation of the law as it stands.

The Supreme Court is the law of the land. It trumps everything else.

Doug M (talk|edits) said:

26 June 2013
My reference to punting had nothing to do with whether they ruled correctly or not, it is the simple fact SCOTUS sidestepped whether or not equal protection applies in all states.

My understanding is the court ruled that Congress cannot intervene.

States are king. Let that state decide.

Podolin (talk|edits) said:

26 June 2013
I would not advise filing a return that is in violation of the law as it stands. Even here? Discussion:To Claim or Not to Claim.....

I don't think you will have an answer by 10/15 If IRS has been following this (and how could they not?), they'd have already had research and meetings and decisions and drafts ready to go. A good way to change public focus from other IRS matters.

If they were married in a state that recognizes marriage the feds should recognize it even if they move to a state that doesn't recognize. I agree. Same with driver's licenses, isn't it?

By the way, what is it on a same-sex, married, filing jointly, 1040 that tells IRS that it is same sex? (I do not prepare any such returns).

Ckenefick (talk|edits) said:

26 June 2013
I didn't say it had something to do with "ruled correctly or not." I said it ruled on the issue before the Court. It was DOMA, a federal law, that was challenged, or at least some aspects of it. State law was not challenged. That is a much larger issue. But I suspect it might be challenged in the near future.

Ckenefick (talk|edits) said:

26 June 2013
By the way, what is it on a same-sex, married, filing jointly, 1040 that tells IRS that it is same sex?

That's a really good question. I was wondering the same thing just this morning. And, if there is a way for the IRS to know, without the matter being disclosed voluntarily by the taxpayer on the 1040, how will the IRS know about sex changes?

Ckenefick (talk|edits) said:

26 June 2013
have already had research and meetings and decisions and drafts ready to go.

I know for a fact that there is a very large agency within the Treasury Department that started making maneuvers months ago, with respect to same-sex benefits, in anticipation of today's ruling.

BFStax (talk|edits) said:

26 June 2013
By the way, what is it on a same-sex, married, filing jointly, 1040 that tells IRS that it is same sex? (I do not prepare any such returns).

Good point. I haven't prepared any such returns yet but it seems like playing audit roulette. No way to know on the face of the return unless the IRS cross checks birth records where Male/Female is checked. With DOMA being unconstitutional this appears to be retroactive and now gay couples who are legally married (must have happened in a state that recognizes it) can amend their federal return. What I see happening in some states is the reverse of what gay couples were doing before. Now they file MFJ and have to prepare two single returns at the state level.

Kevinh5 (talk|edits) said:

26 June 2013
I disagree that the marriage has to have been performed ONLY in a state that recognizes it.

First) if the performance state doesn't allow it, no marriage license is issued, thus no marriage happened in that state.

Second) you are leaving out foreign marriages. Heterosexuals get married in Cancun all of the time. Same-sex couples can be married in many countries, including all over Canada. If legally married in Mexico or Canada (or anywhere else), the US recognizes those marriages as legal for heterosexual couples. They will have to for gay and lesbian couples also.

Kevinh5 (talk|edits) said:

26 June 2013
Will states granting Civil Unions now need to amend those to 'full marriage'? I think so, otherwise their citizens are not 'married'? Or will the Federal government confer 'marriage' status to civil unions?

Doug M (talk|edits) said:

26 June 2013
The IRS, within seconds, can cross check your DOB, your SSN and your name. They know who your kids are and their ages. I want to assume they know your sex.

CrowCPA (talk|edits) said:

26 June 2013
Kevin - I can't speak for any other than Vermont, but Civil Unions still exist here. When same-sex marriage was approved, there was no automatic conversion of those unions to marriages. Many couples who were CU'd chose to marry. A few did not. I see some taxpayers who were still CU'd as of last tax season. They may opt to get married now that there is a federal benefit.

Kevinh5 (talk|edits) said:

26 June 2013
My understanding is that some states which have CUs do not have marriage for same sex (NJ, for example?)

Fsteincpa (talk|edits) said:

26 June 2013
I would imagine that we can remove the word State. If a couple marries in any jurisdiction that allows same sex marriages, then the feds must recognize this. Is that what we are saying/asking?

CrowCPA (talk|edits) said:

26 June 2013
Kevin, I believe that is correct regarding New Jersey. I would expect that it is now up to their legislature to take up the issue of same-sex marriage. None of my same-sex clients reside in that state.

Snowbird (talk|edits) said:

26 June 2013
I been off line so I have skimmed the discussions ... so maybe this came up ... but would the same-sex marriages where client reside in a state that do not recognize the marriage be analogous to common law marriages. Revenue Ruling 58-66 " common-law marriage is equally applicable in the case of taxpayers who enter into a common-law marriage in a state which recognizes such relationship and who later move into a state in which a ceremony is required to initiate the marital relationship." The only place that I have come across the common law marriage is Florida ... the common law marriage was from Alabama ... but since Florida does not have state income tax I did not have to handle that issue. How are out of state common law marriages handed in states that do not recognize them and have an income tax?

Death&Taxes (talk|edits) said:

26 June 2013
As I said earlier, IRS looks to State law when the marriage is dissolved, and often Tax Court looks to State law to determine if a payment is Alimony, and Snowbird makes another good point about common law marriage.

Death&Taxes (talk|edits) said:

26 June 2013
Here is a decent article:

http://www.bna.com/unknotting-windsor-potential-b17179874745/

" What if a couple from NY (or any other state that allows same sex marriage) moves to another state that does not recognize their marriage? Will they still qualify as married for purposes of federal law? The answer to this may be different for income tax purposes than it would be for estate tax purposes."

PollyAdler (talk|edits) said:

26 June 2013
@Snowbird: well, it depends on what the interaction with the government is in the particlar case. In other words, what legal area is involved in the matter.

[Edit. Wrong.]

On the issue of Social Security, I have seen them allow the damndest things on the flimmsiest of evidence, so I have no idea how they would handle the common law situation in a non common law state. If you know someone out there you'd like to survive, by all means make a claim for benefits after they die, even if you don't know them (too well). You might be pleasantly surprised at the results.

Common law marriage is fast disapearing across the country. I never thought GA would get rid of it but we did, and I think we've been without it for 10 years now. P.S. There are two kinds of poeple in America, those who know it never hurts to apply, and those who dont. And this is especially so if they will take a verbal app. and some agencies do. :)

MassTaxPro (talk|edits) said:

June 27, 2013
@Polly

That's not my understanding. I've always thought that if a couple enters into a common-law marriage in a state that recognizes it as such (e.g., for me, RI), and then moves to a state that doesn't recognize the ability to enter into a common law marriage in that state (e.g., MA), then that new state will nevertheless recognize the common-law marriage of the people who moved into the state, under the full faith and credit clause.

Everything I've ever read says that there's no such thing as a common law divorce. Once in a common-law marriage, you can't simply separate on your own to end it, nor can you simply move to a different state to end it (ignoring Texas's quirky statute of limitations about enforcing a common law marriage after separation).

PollyAdler (talk|edits) said:

27 June 2013
No. I see now you are right. If this allegation was made in another non-common law state's court, they would look at the law of the common law marriage state in question to make the determination. I had it in my mind that they would only give recognition to an order or judgment of another state. The bottom line is that the a court will have to base the decision on some statute or case which sets out the criteria for the court's decision on whether they have a marriage (i.e. the state who the parties had nexus with at one time which recognizes common law marriage and has a statute with criteria) because the legal determination of common law marriage is not self declared: a statute or case tells the court how to make the determination given the evidence. Once the court finds the marriage, the divorce can be granted... and it's just a divorce, not a common law divorce.

Oncall (talk|edits) said:

27 June 2013
After reading the post and the article I am now of the opinion that if they are married in a state that allow same sex marriage then they can file a MFJ federal return and the state in which they live is irrelevant. If a taxpayer who is married in a foreign country can file a joint federal and state tax return, then surely anyone, whether same sex or not can certainly file a federal and in my opinion state tax return without taking into consideration state of residence.

Ckenefick (talk|edits) said:

27 June 2013
That's good. I concluded the same thing about 30 posts ago.

Davishoff (talk|edits) said:

27 June 2013
If you are a same sex couple in a state that recognizes same sex marriages and you previously filed single on the federal return because of DOMA. You now have the right to file jointly. Does this change give same sex couples the right to still file Single or must they file MFS like all other married taxpayers? It will be interesting to see how the IRS is going to keep track of marriages in the various states that allow same sex marriages.

Supdat (talk|edits) said:

27 June 2013
Unfortunately, I think the issue set forth in oncall's original question is still up for debate. The news reports are indicating that only SSM couples who live in states where SSM is recognized can file joint returns. Pub 17 comments on common law marriage could be interpreted to mean that a marriage is only a marriage if it is recognized in the taxpayer's state of residence. I think on this issue, we are still in "protective return" land until the IRS tells us one way or the other what their position is, or until the courts tell us.

Supdat (talk|edits) said:

27 June 2013
Davis:

"Does this change give same sex couples the right to still file Single or must they file MFS like all other married taxpayers?"


Assuming the same sex married couple lives in a state that recognizes the marriage, I would think that the couple must file MFJ or MFS going forward.

BFStax (talk|edits) said:

27 June 2013
First) if the performance state doesn't allow it, no marriage license is issued, thus no marriage happened in that state.

Kevin, when I used the word state I should have also included foreign country, you're right. But as you say and I agree, the only way to get married is to apply for a marriage license from the state (or country). If they don't recognize same sex marriages then there is no way our federal govt can recognize it. Legally marrying in one state and then moving to another state that does not recognize same sex marriage is irrelevant for federal purposes but will have implications at the state level.

Dhtax (talk|edits) said:

28 June 2013
Back to the 'move to another state' issue: The instructions to 1040 (presumably based on the Code) say you can file as single only if you were never married, if you were widowed and did not remarry, or if you are "legally separated according to your state law under a decree of divorce or separate maintenance" . . . and the divorce has to be final. It does not say "you can file as single if the state you now live in does not recognize your marriage." . . . and I don't think it will say that in the future, either.

Tax Writer (talk|edits) said:

29 June 2013
Just found out today that one of my colleagues has been filing MFJ for years for at least three couples. No disclosure, but the names were all very obviously male. All the returns got efiled and processed without a peep from the IRS. In every case, the couples were legally married, and chose to pay more tax to make a point (the tax rate would have been lower filing Single). I was shocked, but also rather proud of her.

Ckenefick (talk|edits) said:

29 June 2013
Well, that answers one of the questions we had (maybe in the post? or maybe in another one)...as to whether or not IRS cross-checks the male/female status of individual taxpayers.

Tbm103 (talk|edits) said:

29 June 2013
I also don't know how the IRS can even check if a couple is legally married or not. Or divorced.

Taocpa (talk|edits) said:

2013-06-29
TaxWriter,

How are the names "obviously male"? I've seen guys whose first name were Kim, Leslie, Carroll, Dana, etc.

CrowJD, weigh in as a lawyer. I am no constitutional scholar, but states that don't recognize same-sex marriage, are they not obligated to recognize a marriage for couples married in states that do recognize it?

Tom

Tkelly911 (talk|edits) said:

29 June 2013
DOMA gives the individual states the ability to not recognize marriages originating elsewhere, no matter how legal they might be in their state of origin. This dichotomy is part of the resulting confusion we now have over the validity of marriages across state lines.

Ckenefick (talk|edits) said:

29 June 2013
That fact comports with the mess that states rights' create in the first place. Yes, states have the right to be independent and make up their own rules, but with this, they trust an enormous burden on businesses and all but the average American who frequently transact across state lines.

It would be real nice if states got a grip on the income tax rules and permitted a busines to file a single state return, reporting Sales, payroll, rents paid, property, even IC labor, based on a single set of uniform laws, on a single tax return. I suspect not much would change in terms of how much revenue each state would collect.

Tax Writer (talk|edits) said:

29 June 2013
"How are the names "obviously male"? I've seen guys whose first name were Kim, Leslie, Carroll, Dana, etc."


I mean, in this case, the names were "FRANK" and "RICHARD" and "James" and "Horatio", so I don't know of any women with names like that.

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