• Skip to primary navigation
  • Skip to main content
  • Skip to primary sidebar
  • Skip to footer
  • Advertise
  • Contact Us
  • About Towleroad
  • Towleroad on Social Media
  • Privacy Policy

Towleroad Gay News

Gay Blog Towleroad: More than gay news | gay men

  • Travel
  • Sports
  • Law/Justice
  • Celebrities
  • Republicans
  • Madonna
  • Books
  • Men
  • Trans Rights
  • Royals
  • Monkeypox
  • Vaccine makers prep bird flu shot for humans ‘just in case’; rich nations lock in supplies
  • Toni Collette feels more ‘anxious’ with intimacy coordinators
  • Paris Hilton says Demi Lovato inspired her to write tell-all memoir

The Gay Tax

Ari Ezra Waldman April 13, 2011

BY ARI EZRA WALDMAN

Ari Ezra Waldman is a 2002 graduate of Harvard College and a 2005 graduate of Harvard Law School. After practicing in New York for five years and clerking at a federal appellate court in Washington, D.C., Ari is now on the faculty at California Western School of Law in San Diego, California. His research focuses on gay rights and the First Amendment. Ari will be writing weekly posts on law and various LGBT issues. 

Follow Ari on Twitter at @ariezrawaldman.

Refusetolie It has long been part of the meme of the gay rights movement that, in effect, the United States taxes homosexuality. Various state and federal laws tend to create extra costs for single, partnered and married gays and lesbians by dancing a discriminatory two-step: There is no direct "gay tax" — that would be grossly unlawful — but many laws do not recognize gay relationships, making us strangers to thousands of state and federal benefits that our heterosexual friends take for granted.

With our 2010 taxes due in a few days, an activist organization called "Refuse to Lie" has taken this problem by the horns. The organization has asked gay couples to consider the following paradox: Federal law makes it illegal to lie on tax forms, and yet when a legally married same-sex couple files as two separate single individuals, as the Defense of Marriage Act (DOMA) requires, the two partners are lying.

But, flouting federal tax law by filing as a gay married couple is a risky prescription, even for those willing to fight for our rights in the trenches. Violating federal law is not like getting arrested at a sit in and spending a few hours in the clink. It can result in fines, other financial penalties, audits, opportunity costs and significant jail time. Is it worth it?

Let's consider what the law is and then tell us how you will be filing your federal taxes,
AFTER THE JUMP…

To be fair, "Refuse to Lie" is responsible enough to warn gays and lesbians up front that they cannot file as married for federal purposes even if they are legally married. DOMA excludes gays from the federal definition of marriage, so as far as the Internal Revenue Service (IRS) is concerned, gay couples cannot ever be "married." So, the first suggestion from "Refuse to Lie" is to file as single, put an asterisk next to it and supplement your filing with a note that says that you are filing as single under protest and that by stating you are single, you are in no way disavowing your lawful marriage. It's a good idea: It raises symbolic opposition without putting you at risk for penalties.

Tax "Refuse to Lie" also notes that Section 6664(c) of the Internal Revenue Code provides that "no penalty shall be imposed [for the underpayment of tax] if … there was a reasonable cause for [the underpayment] and the taxpayer acted in good faith…." In other words, you cannot be penalized for paying less if you had a valid reason to believe you could pay less than you owed. You could argue that Judge Joseph Tauro's 2010 decision declaring DOMA unconstitutional and President Obama's decision to stop defending DOMA in federal court are sufficiently reasonable bases for believing that DOMA is indeed unconstitutional and should not force you to pay higher taxes. However, a district court decision and the Obama Administration's legal strategy are far cries from a clear indication of the end of DOMA. It occurs to me that gay married couples in Massachusetts, where Judge Tauro sits, have a more reasonable, good faith belief that DOMA no longer applies to them, but since the cases are on appeal, they are hardly definitive rulings.

There are other options: File both a joint and single return, pay the single amount and declare your reasonable, good faith belief that DOMA does not apply anymore and ask for a refund. You could also file single returns, then file an amended joint return along with an IRS 843 (request for abatement or refund) based on the unconstitutionality of DOMA.

Gay couples taking these actions would not be the first couples of challenge federal tax laws they find unfair or unreasonably penalizing married couples. Some years ago, a couple challenged the so-called "marriage penalty," which is the increasingly common phenomenon that married individuals, both of whom work, pay more federal taxes when they file jointly than when they file single. This couple refused to pay the "penalty," challenging the constitutionality of the applicable federal law, but a federal appellate court upheld the law. The couple not only had to pay the "penalty," but also late fines, a higher bill to their tax preparer and significant emotional and opportunity costs for going through an always trying conflict with the IRS.

At bottom, the "Refuse to Lie" campaign is a campaign for the wealthy, for people who are willing to give up time, money and energy, and willing to risk high fines and a large bill from an accountant, in order to make a statement about the validity of their marriage and all same-sex unions. Couples of lesser means do not have the opportunity to join this fight, except to file their taxes individually and include a symbolic note that their filings do not disavow their state sanctioned marriage. And, it would be difficult to base any underpayment on the current state of the DOMA cases, which means that even wealthier couples ready for a fight are not just risking a battle, but are going to get one.

I recommend you consult your tax preparer before making any decision and before making even symbolic statements to the IRS.

How do you plan on filing? What considerations are you factoring into your decision? What do you think of the "Refuse to Lie" campaign?

Topics: Actor, News More Posts About: Ari Ezra Waldman, DOMA, DOMA, gay marriage, Law - Gay, LGBT, News

Related Posts
  • Former Roommate Indicted For Murder Of Florida LGBTQ Activist Jorge Diaz-Johnston, One of the Public Faces In State Fight For Marriage Equality
  • Russia Blocks Facebook, Accusing it of Restricting Access to Russian Media;
  • Survivor Benefits Payments For Same-Sex Partners Are Being Paid Under Biden, But Many Don’t Even Know They Qualify
  • Toni Collette feels more ‘anxious’ with intimacy coordinators

    Toni Collette feels more ‘anxious’ with intimacy coordinators

    Published by BANG Showbiz English Toni Collette has sent away intimacy coordinators because she doesn’t find them helpful. The 50-year-old actress insisted the experts – who are brought in to help choreograph sex scenes and to …Read More »
  • Paris Hilton says Demi Lovato inspired her to write tell-all memoir

    Paris Hilton says Demi Lovato inspired her to write tell-all memoir

    Published by BANG Showbiz English Paris Hilton has credited Demi Lovato with inspiring her to write her tell-all book. The hotel heiress has lifted the lid on her life in ‘Paris: The Memoir’ which gives a …Read More »
  • Italy’s language watchdog says ‘no’ to gender-neutral symbols

    Italy’s language watchdog says ‘no’ to gender-neutral symbols

    Published by Reuters By Alvise Armellini ROME (Reuters) – Italy’s courts should stick to tradition and avoid the novelty of gender-neutral symbols in official documents, according to the institution that acts as the guardian of the …Read More »
  • U.S. Supreme Court rejects Christian preacher’s challenge to university

    U.S. Supreme Court rejects Christian preacher’s challenge to university

    Published by Reuters By John Kruzel WASHINGTON – The U.S. Supreme Court on Monday declined to hear a traveling Christian evangelist’s free-speech challenge to a University of Alabama requirement that he obtain a permit before handing …Read More »
Previous Post: « Watch: Lady Gaga Discusses New Album, Judas Single, and Finding Pizza in Her Shower
Next Post: Watch: Jon Stewart Rips the 2012 GOP Presidential Hopefuls »

Primary Sidebar

Adjacent News

  • Study provides insight into how culture war issues contributed to Trump’s rise to power

    Study provides insight into how culture war issues contributed to Trump’s rise to power

  • Lukas Gage Says He Feels Pressed To Identify His Sexuality As Chris Appleton Claims He’s Dating Actor

    Lukas Gage Says He Feels Pressed To Identify His Sexuality As Chris Appleton Claims He’s Dating Actor

  • Protesters clash outside NYC drag story hour hosted by Attorney General Letitia James, one arrested

    Protesters clash outside NYC drag story hour hosted by Attorney General Letitia James, one arrested

Good Trash: Going to Read It Somewhere, Y'know

  • Gwyneth Paltrow says rectal ozone therapy has been ‘very helpful’

    Gwyneth Paltrow says rectal ozone therapy has been ‘very helpful’

  • Sarah Ferguson and Princess Diana were arrested for impersonating police officers

    Sarah Ferguson and Princess Diana were arrested for impersonating police officers

  • Samantha Ronson reacts to the news that her ex Lindsay Lohan is pregnant

    Samantha Ronson reacts to the news that her ex Lindsay Lohan is pregnant

RSS Partner Links

  • An error has occurred, which probably means the feed is down. Try again later.

Most Recent

  • Vaccine makers prep bird flu shot for humans ‘just in case’; rich nations lock in supplies

    Vaccine makers prep bird flu shot for humans ‘just in case’; rich nations lock in supplies

  • Toni Collette feels more ‘anxious’ with intimacy coordinators

    Toni Collette feels more ‘anxious’ with intimacy coordinators

  • Paris Hilton says Demi Lovato inspired her to write tell-all memoir

    Paris Hilton says Demi Lovato inspired her to write tell-all memoir

  • Italy’s language watchdog says ‘no’ to gender-neutral symbols

    Italy’s language watchdog says ‘no’ to gender-neutral symbols

  • U.S. Supreme Court rejects Christian preacher’s challenge to university

    U.S. Supreme Court rejects Christian preacher’s challenge to university

  • Former German top diver Hempel seeks compensation over abuse by coach

    Former German top diver Hempel seeks compensation over abuse by coach

  • Finland’s President Niinistö defends joining NATO without Sweden

    Finland’s President Niinistö defends joining NATO without Sweden

  • Censorship or evolution? ‘Sensitivity readers’ divide publishing world

    Censorship or evolution? ‘Sensitivity readers’ divide publishing world

Most Commented

Social

Twitter @tlrd | Facebook | Instagram @tlrd

Footer

Copyright © 2023 · Log in

×