Discussion:Same Sex Couple Married in California

From TaxAlmanac, A Free Online Resource for Tax Professionals
Note: You are using this website at your own risk, subject to our Disclaimer and Website Use and Contribution Terms.

From TaxAlmanac

Jump to: navigation, search

Discussion Forum Index --> Basic Tax Questions --> Same Sex Couple Married in California


Discussion Forum Index --> Tax Questions --> Same Sex Couple Married in California

Lalva (talk|edits) said:

10 November 2008
If a same sex couple got married in California before the passing of proposition 8, can they file a tax return as MFJ/MFS for 2008? Or do they have to become Registered Domestic Partners?

Thank you.

Kinson (talk|edits) said:

10 November 2008
They'll have to fill out the new IRS Form and file RDPFJ or RDPFS. (Acutually I honestly don't know and this is a good question.)

Joanmcq (talk|edits) said:

10 November 2008
As far as I know, the marriages that happened before passing prop 8 will still be valid. If anyone says not, wait for 18,000 lawsuits. There have already been suits filed concerning Prop H8.

Lalva (talk|edits) said:

10 November 2008
This couple has never been RDP. Does it change anything? Should they register with CA?

EZTAX (talk|edits) said:

10 November 2008
At this point the status of the pre prop 8 marriages is unclear. I you asking about mfj for federal or state? I can't imagine MFJ for federal at this point. For the state it is an interesting question. If you want to be safe and insure that you can go state MFJ for 2008 why not do the RDP just to make sure?

KatieJ (talk|edits) said:

10 November 2008
Of course this couple cannot file MFJ for federal purposes. In California they are legally married unless the courts invalidate the pre-Prop 8 marriages -- which I think is unlikely, but you never know.

A pre-existing RDP did not have to be dissolved prior to marriage if the parties to both the RDP and the marriage were the same. However, under the RDP law, a married person is not eligible to register. I would advise a client to consult an attorney about this, though, because if it turns out that the same-sex marriages are invalidated, the RDP would give them the same tax status in California as marriage.

As a married couple in California, their California filing status must be MFJ or MFS. They cannot file as single individuals in California. The same would be true if they were RDPs.

Louie (talk|edits) said:

10 November 2008
Defense of Marriage Act”, P.L. 104-199 and PLR 9850011 indicate that "marriage" for the IRC means a spouse of the opposite sex.

However, an adult who is living in a household may qualify as a dependant.

Riley2 (talk|edits) said:

10 November 2008
A joint federal return is out of the question. A joint return for California purposes would also be out of the question. There is nothing in California RTC 18521 that would allow a same-sex married couple to use a filing status that is different from their Federal filing status.

[See Riley2's Nov 11 post, below, for a change to this.]

Lalva (talk|edits) said:

10 November 2008
Thank you so much to all of you.

I was asking about the California filing status, of course, the federal is out of the question.

I'll ask my clients to become RDP in California then.

Joanmcq (talk|edits) said:

10 November 2008
no, they do not have to register. When in doubt, check the FTB website:

http://www.ftb.ca.gov/individuals/Same_sex_marriage/filing_status_faq.shtml

Michaelstar (talk|edits) said:

10 November 2008
Lalva - first and foremost - you should not be practicing law. I strongly suggest that you ask your clients to seek legal advice with respect to filing the RDP forms with the Sec of State and when asked for tax advice on this subject then it is your turn to assist if you feel technically qualified to do so.

I have gone and read the CA R&TC 18521 that Riley2 has pointed out and based on this site, Riley2 is correct.

This is not an easy area of tax practice so I sort of consider this a moving target depending on when one asks the question. As Katie points out, depending what the courts decide in the future, this answer may certainly change again. It may very well become retroactive in how this is applied, that we can only guess at this point.

The FTB issued Notice 2008-5 in June 2008 which states that same sex couples that have married as of June 16, 2008 are to file either MFJ or MFS for 2008 which is contrary to the what is currently in R&TC 18521. Obviously, things have again changed but for what period? After the November 4th date of the election??

Here is the link:

http://www.ftb.ca.gov/law/notices/2008/2008_5.pdf

For now, I think we have a period when same sex couples that got legally married between June 16, 2008 and November 4, 2008 will need to file as MFJ or MFS for 2008 and beyond for CA tax purposes until something changes.

Mscash (talk|edits) said:

11 November 2008
The attorney general has ruled, unofficially, that gay marriages that have taken place are valid. Since they are now defined in the state constitution as not valid, I have my doubts about that but who are your going to believe, the top public attorney in the state or an EA in the backwater. In any event, I'm sure that the state supreme court is the one that will have to decide.

It only costs $25 to register as domestic partners so doing that just to make sure might be money well spent.

KatieJ (talk|edits) said:

11 November 2008
I was concerned that a married person would not be eligible to be a registered domestic partner. However, the RDP statute provides that an RDP must not be married to someone else or be a member of another domestic partnership with someone else that has not been terminated, dissolved, or adjudged a nullity. Calif. Family Code Sec. 297(b)(2). As a result, I believe Lalva's clients (and other SSMCs -- that's FTB-speak for same-sex married couples) are eligible to also register as domestic partners if they choose to do so.

The worst case scenario, it seems to me, is that sometime after December 31, 2008 the same-sex marriages that were entered into between June 16 and November 4 are determined to be invalid retroactive to the date of the marriage. An SSMC that was not also an RDP as of December 31, 2008 would then revert to single or HOH status for California tax purposes for 2008.

I am hopeful that the June 16-Nov. 4 marriages will be upheld, as Jerry Brown (the California Attorney General) has predicted. In fact, I'm even hopeful that Prop. 8 will be invalidated by the California Supreme Court, although I'm realistic enough not to hold my breath for that. In any event, if I had clients who had married but were not RDPs, I'd suggest they get legal advice to decide whether they should register as RDPs before the end of the year.

Riley2 (talk|edits) said:

11 November 2008
FTB Notice 2008-5 implies that the Federal filing status for same-sex married couples is not really binding for California purposes. Thus, the couple can file a joint return for California purposes.

Kevinh5 (talk|edits) said:

16 August 2013
Can we delete wrong info now?

Ckenefick (talk|edits) said:

16 August 2013
No, not yet.

Ckenefick (talk|edits) said:

16 August 2013
Okay, now you can.

To join in on this discussion, you must first log in.
Personal tools