It’s tax time, and for married same-sex couples the federal Defense of Marriage Act (DOMA) can cause a number of problems. The first involves just filing your taxes. Because the federal government does not respect your marriage, you must file two separate returns using “Single” as your filing status. We encourage couples to in some way indicate on their return that they are in fact in a same-sex marriage so that there is no question about their relationship status if the tax return is used for some other purpose, like applying for a mortgage.
If you live in a place that recognizes your marriage, then in most cases (you should verify this for your place of residence) you MUST file as married, either as married filing jointly or married filing separately (which is different from the “Single” filing status). However, since state tax forms require that you bring over information from your federal form, you will need to create a “dummy” federal tax form as married that you use to bring over your figures onto the state form. The “dummy” federal form never gets filed anywhere—it is just used to create your married state form. For more detailed information about this see GLAD’s publication, Navigating Income Taxes for Married Same-Sex Couples.
The second issue that some married same-sex couples face, is that IF they could file as married they would pay less federal taxes than the current requirement of filing two “Single” returns. When GLAD wins one of its DOMA lawsuits, same-sex married couples should be able to file as married from that point on, but is there anything that can be done to get back some of the taxes that have already been paid out? Possibly.
Generally speaking, the IRS allows you to file an amended return up to three years from the date you filed your return. So if that time period has not expired, you can go back and file an amended return as married. Of course, that return should be denied because of DOMA, but you can keep appealing the IRS decision administratively until they will finally give you a “right to sue” letter in federal court. The idea is to keep your appeal going for as long as possible hoping that we will defeat DOMA while your appeal is still active. So you would want to stretch out each time limit as much as possible but still make sure that you take that step within the allowable timeframe. There is much more detailed information about this in our publication, Tax Time and Preserving Your Federal Rights.
If you have questions about any of this, the best place to go is GLAD’s Legal InfoLine at 800-455-GLAD (4523) or www.glad.org/rights/infoline-contact.