Newlyweds Ruth Berman and Connie Kurtz are gearing up to file their first tax return as a married couple.
Typically, couples grapple with the financial pros and cons of filing
separately or jointly. Though either way, they tell the IRS they are
married.
However, for Ruth and Connie, prominent gay activists who were
married last summer in New York after the state approved gay marriage,
income taxes are far more fraught.
The U.S. government does not
recognize their marriage. By law they must file their federal income tax
returns individually.
The trouble is, they believe that to do this would be a lie.
"My taxes are usually at my accountant by beginning of February,"
said Connie, 75, in telephone call with The Huffington Post late last
week. "I can't seem to pull it off. I keep thinking about what should we
do.
What about the legal part?"
The tension between what is legal and what is truthful when it comes
to taxes and gay marriage is in the spotlight this tax season, as an
increasing number of states -- six plus Washington, D.C. -- sanction
same-sex unions.
While there are no statistics available on the number of gay married
couples who do file joint federal income taxes, a website launched last
April called Refuse to Lie offers advice and testimonials from couples who have decided to defy the law.
"[Federal
income tax forms] tell gay people to discriminate against themselves,"
said Nadine Smith, who founded Refuse to Lie and is the director of the
gay advocacy group Equality Florida. "We are not going to treat our
marriages like they don't matter."
The gay rights community is divided on the issue, however. Many say
that following the law when it comes to taxes is the first priority for
married couples.
"If you get audited and they discover that you should have filed
separately, you could owe them money plus the interest," said Bruce
Bell, a spokesperson with the Gay & Lesbian Advocates &
Defenders, a legal rights organization. "You're breaking the law and if
you're caught, you will pay."
It's not clear that anyone actually gets caught, however. The Internal Revenue Service does not ask for gender on tax returns. And it's not always easy to tell if a couple is same-sex or not (Ruth and Connie? Jamie and Pat?)
"I have never once, in filing returns for heterosexual couples, seen
the IRS question if someone is married," said Tina Salandra, an
accountant who works extensively with same-sex couples in the New York
area.
"The IRS has never asked for a marriage certificate, and the same
is true for divorce."
Other accountants reached by The Huffington Post said that while it's
against the law for same-sex couples to file as married for their
federal tax returns, it is unlikely the IRS would investigate.
Of course, it's still a risk, particularly as the issue gains
national attention. "There could be some cross-checking in regard to
filing status with the marriage license to see if [the couple] used the
proper filing method," said Donald Anspauch Jr., an enrolled tax agent
in West Hollywood, Calif., who has been doing tax returns for more than
20 years.
The IRS for its part would not comment on whether it investigates tax
returns based on marriage, but reiterated its support of federal laws.
"The IRS follows the federal Defense of Marriage Act (DOMA) and as
such, same-sex partners cannot file their federal income tax returns
using the married filing jointly or the married filing separately filing
status," said IRS spokeswoman Sara L. Eguren in an email.
Bottom line, if a tax return is unlawfully filed, it will be rejected
by the IRS. Each person must re-file individually and could be on the
hook for penalties and accrued interest on an old tax bill.
Anspauch
said it can take more than a year for the IRS to kick back a return,
which can add up to significant interest.
In other words, that little tax bill could become a very big tax bill.
Financially, gay couples who are married in states that sanction
their union face a double whammy at tax time.
Federal returns must be
filed individually, but state income taxes must legally be filed as
married, either as a joint tax return or as "married filing separately.
"
This typically means that a same-sex couple must fill out a dummy joint
federal tax form in order to generate the figures that are necessary to
file a state tax return as a couple.
In practice that means completing
four tax returns: one dummy federal return, one state return and two
individual federal returns.
Anspauch said same-sex couples' tax returns cost around $1,200 to
prepare because of the paperwork, time and level of detail it takes to
complete. For a married opposite-sex couple, a similar return might cost
$500 to prepare, he said. "It's like making your mama's favorite cake
recipe: you have to pay attention to detail."
Ruth and Connie, the New York newlyweds, were profiled in a 2010 documentary
and have spoken widely on gay civil rights and marriage. They are still
weighing the risks (tax fraud and penalties) against the benefits.
"We
are totally supportive of refusing to lie, but it's illegal for us,"
Connie said.
Married couples who file together do not necessarily have a financial tax advantage.
In cases where both spouses are high earners, filing together could
throw them into a higher tax bracket.
For couples with more unequal
incomes -- say, if one spouse takes care of a child and does not work
outside the home -- there are clear benefits.
Melba and Beatrice Hernandez-Abreu were married in 2004 in
Massachusetts, the first state to legalize same-sex unions.
Melba, 56,
and Beatrice, 50, said they forfeited $25,359 between 2004 and 2008 in
federal tax refunds.
"The inability to file our taxes according to our civil status has
very practical implications for us," Beatrice
said in a phone call. "It
not only represents the loss of the earnings, it has a place in our
future years because [of retirement]."