UPDATE: The word from Carl is that the Department of Taxation and Finance will permit joint filing by married same-sex couples, without a change in the Tax Law, based on the language in the Marriage Equality Act. Guidance to that effect should be coming out in the next few weeks.
Carlton Smith, Clinical Associate Professor of Law and Director of the Tax Clinic at Cardozo Law School (and a former colleague of mine from Roberts & Holland), brought a tax issue raised by New York’s Marriage Equality Act to my attention and graciously gave me permission to blog about it.
Section 651(b) of the New York Tax Law requires a “husband and wife” who file separate federal income tax returns to likewise file separately for New York state income tax purposes (and, conversely, generally requires married couples who file jointly for federal income tax purposes to file jointly for New York state income tax purposes as well). As Carl points out:
Since the Defense of Marriage Act currently prohibits the filing of joint federal income tax returns by gay married couples, that means all gay married couples in New York will not be able to file a joint New York income tax return this year, unless (a) the statute is changed to permit gay couples an exception from 651(b)(1) or (b) the DTF [Department of Taxation and Finance] issues guidance giving gay couples such an exception.
There is nothing in the text of the Marriage Equality Act that specifically changes this rule. Nevertheless, there is language in the Act that would support taking a broad interpretation of the Tax Law to avoid the inequities created by the federal government’s failure to recognize same-sex marriages celebrate in New York. In particular, the Act states:
It is the intent of the legislature that the marriages of same-sex and different-sex couples be treated equally in all respects under the law. The omission from this act of changes to other provisions of law shall not be construed as a legislative intent to preserve any legal distinction between same-sex couples and different-sex couples with respect to marriage.
In the spirit of this language in the Marriage Equality Act, one could take a narrow interpretation of § 651(b) as applying only to different-sex married couples. References in the text of this section to “separate” and “joint” federal returns are keyed into the federal filing statuses–and, more particularly, to filing statuses that apply only to married different-sex couples. In other words, married same-sex couples might file “separate” returns in the colloquial sense of that word, but their federal filing status cannot (at least for now) be “married filing separately” or “married filing jointly”; rather, by dint of the application of the federal Defense of Marriage Act, their filing status is “single.” So, one could construe § 651(b) as simply being inapplicable to same-sex couples because they cannot file either “joint” or “separate”–but only “single”–federal income tax returns. With a lacuna in the New York Tax Law, that would seem to open the door to the Department of Taxation and Finance to “[m]ake such reasonable rules and regulations, not inconsistent with law, as may be necessary for the exercise of its powers and the performance of its duties.” N.Y. Tax Law § 171.
Let’s hope that the legislature either corrects this oversight or the Department of Taxation of Finance relies on this language from the Act to interpret the Tax Law to permit same-sex couples to elect to file either separately or jointly for New York state tax purposes.