Earlier this year (2013), in United States v. Windsor, the U.S. Supreme Court ruled that the Defense of Marriage Act (DOMA) was unconstitutional to the extent that it defined marriage as being only between a man and a woman for federal law purposes. The Court ruled that marriage is a topic for governance by the States.
Later, the Internal Revenue Service issued Revenue Ruling 2013-17, which basically provides for a hybrid result with respect to gay couples. Under this ruling, for federal tax law purposes, a gay couple is considered married if they were married in a state that recognized gay marriage at the time of the marriage. Other gay couples are not considered married for federal tax purposes.
Generally speaking, it is advantageous to file income tax returns using married filing jointly status. Query whether the U.S. Constitution prohibits the result of Revenue Ruling 2013-17?
Article IV, Section 2, of the U.S. Constitution provides: “The citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” Is filing a joint income tax return a privilege? If so, why would the determination made by Revenue Ruling 2013-17 be constitutional? Could due process or another provision of the Constitution call for a different result than Rev. Rul. 2013-17? It would seem that a challenge is imminent, and it would seem that it likely would succeed based on equitable principles and the Constitution.
Congress needs to reform entitlements and the tax system to deal with the “modern family” that has caused the Internal Revenue Code and the entitlements systems to be outdated.
