Clever Gay Couples Use Tax Returns To Challenge DOMA

Emboldened by the Obama administration’s recent announcement that it will no longer fight for the Defense of Marriage Act, the “Refuse To Lie” campaign is encouraging more married gay couples to file their federal taxes jointly.

On federal tax returns, people are asked specify if they’re single, married filing jointly, married filing separately, head of household or qualifying widow(er) with dependent child. According to the New York Times, married same-sex couples usually file as single or head of household. However, the “Refuse to Lie” campaign, claims this is dishonest, and outlines ways that gay couples can express their disapproval of DOMA through their tax returns. A statement on the group’s website explains:

The federal government’s refusal to recognize our marriages is blatant discrimination and we will not play along by lying on our tax returns and pretending we are single. The government has chosen to discriminate and we choose to expose their bigotry by refusing to lie.

There are currently two pending cases challenging DOMA in Massachusetts. In a report to Congress, Nina E. Olson, the national taxpayer advocate who acts as the I.R.S.’s ombusdman, argued that, “There may be substantial authority for same-gender spouses to take certain tax positions as married as long as the Massachusetts district court’s opinions stands.”

The cases still haven’t been overturned, but filing jointly is still risky for married gay couples. Refuse To Lie’s website recommends including a note with a single tax return that explains:

The above named taxpayer married a person of his/her same sex in [place] in [year]. The taxpayer has not filed this return as “married” (either jointly or separately) solely because the Defense of Marriage Act (DOMA) defines marriage as a legal union between a man and a woman. By filing as “single,” the taxpayer is in no way disavowing his/her marriage.

This can ease the consciences of gay spouses who say they’re single on their tax return, but then swear that everything on the return is true under penalty of perjury. However, some believe leaving a note for the computer (or occasional human) that processes returns isn’t a strong enough protest.

There are several possibilities for filing a joint return, but there’s a greater chance that the couple will face penalties if they’re audited. One option is to file single returns and an amended return jointly. After the amended return is rejected, the couple could file a suit claiming the refund. The original single return should prevent the couple from incurring penalties. A second method involves filing both joint and single returns, paying the higher amount on the single return, and asking the I.R.S. which return to accept.

Kate Kendell, the executive director of the National Center for Lesbian Rights, tells The Times she plans to file a joint return with her partner of 18 years, who she married in 2008. This will wind up costing them more than $5,000, but Kendall explains, “This is my small way of saying, where we can, we are not going to play the game anymore.”

Committing time and money to challenging the I.R.S. probably isn’t feasible for most married gay couples, but regardless of whether gay spouses choose to follow methods described by “Refuse To Lie,” the campaign highlights the absurd situations created by DOMA. No matter what these couples do, they already face a penalty at tax time by being forced to make more complicated decisions about how to describe their status, while straight spouses can check a box with no hesitation.

Married Gay Couples ‘Refuse to Lie’ On Tax Forms [NYT]
Tips For Gay Couples Considering Filing As Married [Refuse To Lie]