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Section 6013(a) of the Internal Revenue Code of 1986 states, "A husband and wife may make a single return jointly of income taxes under Subtitle A, even though one of the spouses has neither gross income nor deductions, except as provided below...." The exceptions are not relevant to the gender of the persons filing as "husband and wife." The terms "husband" and "wife" are not defined at any point in the Internal Revenue Code of 1986, except to distinguish husbands and wives from former husbands and wives when a divorce takes place. See section 7701(a)(17). There is no statement anywhere that a "husband" must be male or that a "wife" must be female. IRS regulations under section 6013 also do not define the terms "husband" and "wife." If one assumes that husbands are male and wives are female by definition, then the federal privilege of filing joint returns would be denied to any couple that consists of two husbands or two wives. However, because the terms "husband" and "wife" are not defined in terms of gender, arguably as long as one half of the couple identified himself or herself as "husband" and "wife," respectively, the privilege of filing joint returns should extend to same sex couples. Let me point out that I personally believe the privilege of filing jointly should extend to same sex couples. But I also want to point out the danger if a court were to look at this issue. Many courts interpreting the terms "husband" and "wife" would likely aver to the "intentions of the drafters." As best I can recall, Congress first created the privilege to file jointly sometime in the 1930s--probably in the Internal Revenue Code of 1939. A court looking at this issue might say that in 1939, no one would possibly have anticipated that a "husband" could be female or a "wife" could be male. It could argue that based on the obvious meanings of the terms as used at the time, the privilege of filing joint returns does not extend to same sex couples. This would be especially likely if the judge were to adopt a Scalia-type approach to statutory interpretation. The IRS has not taken a clear posiition on this issue. My guess is that they don't want to make a clear statement about it for fear of arousing controversy. It is likely that a Republican President would hire an IRS Director who would resist same sex joint filing, while a Democrat would do the opposite, but I don't know for sure. The issue is likely to be litigated if the IRS prohibits same sex joint filing, but not if the IRS accepts it (because there would be no party directly harmed by IRS tolerance for same sex joint filing--no one would have standing to sue). Most states, including CA, use the federal filing status rules. For purposes of state tax filings, the states are not bound by the federal definitions. Nor is the IRS bound by the states' definitions of marriage. Obviously, we will have to wait and see.

by Anon Y

2 months ago

Asker's Rating: 

Your presumption that the Federal Income tax determines filing status by reference to state law is questionable. Most states base their income tax on federal tax with adjustments for state specific variations. However, the states are not bound to adopt or utilize the federal tax rules for state income tax purposes and they can define any part of their income tax laws as they see fit. As for not merely citing the "IRS code", I presume you mean the Internal Revenue Code (IRC). The IRS doesn't make the law, but they do issue regulations that interpret the law. And, with respect to taxes, the IRC code is the law of the land with the only recourse being to the Federal Constitution.

by VKJ- 2 months ago

if married it does say as husband and wife living together or common law where you live. state law in california dont really say if you have to be husband and wife. check next years tax booklet or write to the state tax authority & ask what their policy will be since same sex marriages are now legal there.

by k2t3- 2 months ago

federal tax laws are totally independent of state tax laws - if anything the states mirror the federal tax return in some states - they allow the same FEDERAL itemized deductions for example - How could the Fed mirror 50 different state tax laws - that makes no sense

by Doctor Deth- 2 months ago

The law says you must be legally married to file a joint return. Since, at least at this time, same sex marriages aren't recognized on the federal level, a same-sex couple can't meet the requirement to be legally married for federal purposes.

by Judy- 2 months ago