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Writing, as I do, about how the tax laws adversely impact same-sex couples, I often come up against the entirely misguided argument that same-sex couples should be happy with their current treatment under the federal tax laws:that is, mandatory treatment as separate,”single”filers:because they avoid, among other disadvantages, the marriage”penalty”that applies to two-earner different-sex married couples. In addition to stereotypes about the economic status of lesbians and gay men, this argument is based on what I like to call the”myth of quantification”:the notion that all that counts in tax are those things to which you can assign a numerical value. In the case of same-sex couples, this often results in an undue focus on the bottom line amount of tax that they pay.But there is far more to the taxation of same-sex couples than the actual amount of tax that they pay. Taxation can also have important symbolic, psychological, and other intangible effects on same-sex couples. Indeed, a recent case decided by the New Jersey courts nicely illustrates the symbolic effects of how we choose to tax same-sex couples.

A lesbian couple from New Jersey who had married in Canada several years ago and later registered as domestic partners were automatically treated as parties to a civil union when New Jersey’s civil union law went into effect on February 19, 2007. They requested guidance from the New Jersey tax authorities regarding whether they would be able to file a joint tax return for the 2006 tax year, given that (1) the New Jersey Supreme Court decision that gave rise to the state’s civil union law (Lewis v. Harris, 188 N.J.)) was decided before the end of that year and (2) the decision in Lewis v. Harris recognized the state constitutional right of same-sex couples to all of the benefits and obligations of marriage. The state tax authorities indicated that the couple could file a joint tax return for 2007 and future taxable years:that is, for taxable years ending after the effective date of the civil union law:but not for 2006 or past years when the civil union law was not yet in effect.

Interestingly, the couple made this request even though they would pay $411 more in tax if they were to file jointly than they would pay if they were to file separately. In other words, they were willing to pay the price of the marriage penalty in exchange for the symbolism associated with filing a joint tax return. Ultimately, however, the Appellate Division of the New Jersey Superior Court upheld the state tax authorities’ decision. The court found this decision to be consistent with language in the Lewis v. Harris decision that recognized that extending the benefits and obligations of marriage to same-sex couples could not be accomplished overnight.

A copy of the decision in this case, Quarto v. Adams, can be found here.

-Anthony C. Infanti

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