Alabama lawmaker urges same-sex couples to file jointly
by Tim Lockette
tlockette@annistonstar.com
Jul 06, 2013 | 5954 views |  0 comments | 110 110 recommendations | email to a friend | print
American University students Sharon Burk, left, and Molly Wagner participate in a rally for rights for gay couples in front of the Supreme Court in Washington after the court cleared the way for same-sex marriage in California by holding that defenders of that state's gay marriage ban did not have the right to appeal lower court rulings striking down the ban. (AP Photo/Charles Dharapak)
American University students Sharon Burk, left, and Molly Wagner participate in a rally for rights for gay couples in front of the Supreme Court in Washington after the court cleared the way for same-sex marriage in California by holding that defenders of that state's gay marriage ban did not have the right to appeal lower court rulings striking down the ban. (AP Photo/Charles Dharapak)
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Alabama's only openly gay state legislator is urging the state's same-sex married couples to file joint income tax returns next year — a direct challenge to the state’s ban on gay marriage.

Rep. Patricia Todd, D-Birmingham, told The Star in a recent interview that she'd like to see gay couples, legally wed in other states, file joint returns on both the state and federal level, something that could lay the groundwork for legal action if the returns are treated differently than those of straight couples.

"I'd like to see what happens," Todd said.

Todd’s comment comes after two landmark U.S. Supreme Court rulings on same-sex marriage. The nation's highest court in June struck down the ban on federal recognition of same-sex marriages that are solemnized in states where gay marriage is legal. The court also struck down California's ban on same-sex marriage.

The rulings fostered little change for gay couples in Alabama, where same-sex marriage is banned by constitutional amendment. The court stopped short of requiring non-gay-marriage states to recognize out-of-state gay marriages.

Todd, who plans to marry her long-time partner in Massachusetts later this year, has said she intends to file a legal challenge to Alabama's gay marriage ban. She said recently that she was still working out the details of that challenge. She also said she hoped other gay couples would push the issue by filing joint tax returns. If those returns were handled in a different way than heterosexual couples' returns, she said, the difference could be grounds for a lawsuit.

Joint-filing challenges are likely to become the next big wave of challenges to gay marriage bans nationwide, said Patricia Cain, a law professor at Santa Clara University in California.

"We'll see a wave of suits from red states," said Cain, who specializes in same-sex tax law. "You can't stop people from saying, hey, I want my rights, too."

While a same-sex tax protest might smack of civil disobedience, Cain doesn't expect states like Alabama to throw gay people in jail for filing joint returns. Protesters in gay marriage states have been filing joint federal returns for some time, she said. In some cases, those returns fly under the radar.

"A couple sent me a photo of their refund check, made out to two men," she said. "They thought there was a gay angel at the IRS. But it's probably just a dumb computer that doesn't recognize gender."

The Internal Revenue Service has yet to issue new rules for taxes in the wake of the recent Supreme Court decision. According to the IRS website, the agency is still reviewing that decision to determine what impact it will have on tax returns at the federal level.

Anniston-area tax preparers declined comment on what would happen to same-sex couples who file joint returns, saying it was too early to tell.

Officials of the Alabama Department Revenue deflected questions on what would happen to same-sex joint filers, referring The Star to Amendment 774 to the Alabama Constitution. That's the amendment that bans gay marriage.

Asked what would happen to a heterosexual couple who filed jointly without a marriage license, department spokeswoman Carla Snellgrove said in an email that the service typically accepts the filed marital status as correct.

"Like most information taxpayers report on their returns, filing status is assumed to be accurate as reported, but subject to verification," Snellgrove wrote.

If the filing status on a return turns out to be inaccurate, Snellgrove said, the department would likely separate the incomes of the two filers and calculate the amount owed by each. If the pair owed more as single filers, she said, they'd have to pay what they owe.

A higher tax bill could be the basis for a gay couple to take the state to court, Cain said. The Supreme Court's decision to gut DOMA, she noted, came as a result of a tax case: New York resident Edith Windsor took the government to court over taxes she was charged when she inherited her wife's estate.

Cain said she expected the IRS to eventually rule that gay couples in non-gay-marriage states can file joint federal returns, simply because it would simplify matters for the IRS itself.

"The federal government doesn't have a definition of marriage for tax purposes," she said. "They leave it to the states, but that's become complicated."

Cain said that since the mid-1990s, same-sex tax law has become a cottage industry, with some lawyers specializing in preparing gay couples' tax returns.

She expects the field to die out soon, as more states recognize same-sex marriage.

"There are a lot of people doing same-sex tax law now," she said. "In 10 years, they'll just be doing tax law."

Capitol & statewide correspondent Tim Lockette: 256-294-4193. On Twitter @TLockette_Star.

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