Even though the IRS issued guidelines for same-sex couples following the Windsor case, some think the agency may be partly at fault for the confusion. For example, the agency has said that married gay couples can re-file past returns in the hopes of getting a refund, but that hasn’t been made clear to tax preparers across the country. “The IRS is telling them things like, sorry, the Windsor case is not retroactive. There’s been lots of miscommunication between taxpayers and IRS agents in the field,” said Pat Cain, a tax-law professor at Santa Clara University, who is also in a same-sex marriage.
“I would not say the IRS writ large has been trying to reach out to community organizations and make sure people are informed as possible,” said Brian Moulton, the legal director at the Human Rights Campaign. “They put out guidance, put out publications; that’s their approach.”
All of this means one thing: Even for married gay couples who live in states that recognize same-sex marriages, this filing season may involve unexpected complications. “I do think this is going to be a surprise to some people,” said Cain.
Couples in civil unions may also have issues. Even in recognition states, they have to file individually at the federal level and jointly at the state level, because the IRS does not recognize joint returns from people who aren't technically married. This creates an interesting situation for couples living in Hawaii, for example, which just started recognizing gay marriages in December: Even though they have the option to get married, they might get better benefits and pay less tax money if they don’t.
But for many people, taxes are symbolic of the broader question of equality. While gay-rights advocates have cheered the Windsor decision and the IRS’s tax ruling, this filing season shows that gay marriages still aren’t equal to heterosexual marriages in America, no matter where you live.
"My husband says not one damned dime to them: If they’re not going to recognize our marriage, we’re going to file in the cheapest way possible."
“There’s certainly anger that the state wants to disregard my family and our value,” said Purintun. “The form asks are you married, and … you sign under penalties of law that what you put on the form is true.” If Purintun and his husband follow Virginia’s guidelines, they will have to file their state taxes as single, “unmarried” individuals. “I wonder how many members of the legislature or general citizens of Virginia would be willing to sign that that’s true because a tax bulletin says this is true,” he said.
Purintun and his husband haven’t decided what they’re going to do about their taxes yet; they’re hoping that Virginia may revise its guidelines before the state's filing deadline at the end of April. “My husband says not one damned dime to them: If they’re not going to recognize our marriage, we’re going to file in the cheapest way possible,” he said. “But as a tax attorney, I think you should follow the law.”
Gay couples who live in non-recognition states have a few other options, he said, including filing their taxes with an attached letter of protest. Or, they could cross their fingers and try to file jointly—since the IRS and state revenue agencies don’t ask people to indicate their gender on filing forms, he thinks couples would probably get away with it.
“There are penalties that apply if you falsify your tax return, but would it be false if you say that you’re married in Virginia even though Virginia didn’t recognize it?” he asked. “If you’re married and likely to pay more by filing married, where’s the foul?”
It is true that most married couples who will now file jointly at the federal level will likely owe more money to the government—with a higher combined income, more of their money will be taxed at a higher bracket. But for many, this seems to be worth it.
“I’m going to pay a huge marriage tax penalty myself and I hate that, but I’m probably not going to curse as much when I’m preparing my form as I have in past years,” said Cain.
“What we’ve said as we try to convince ourselves that we have to pay more taxes is that equality is the benefit that we wanted,” Purintun said. “Equality is not necessarily free, but it is what we want.”