In the wake of the United States Supreme Court's decision regarding the Defense of Marriage Act in United States v. Windsor, tax lawyers and those interested in tax policy immediately wondered what consequences this change would have to the United States' federal tax laws. The Internal Revenue Service issued a Revenue Ruling explaining the position it took regarding the case, which answered many questions for taxpayers whose lives were affected by the decision. Because the IRS announced that it would recognize same-sex marriages based on the state of celebration of the marriage rather than the state of residence of the taxpayer, the IRS has gone a long way towards ensuring fairness for same-sex taxpayers in the United States. However, because, as of this writing, only seventeen states in the United States (and the District of Columbia) recognize same-sex marriages, taxpayers in same-sex relationships who live in any of the remaining thirty-three states must travel to another state in order to celebrate a marriage that will be recognized for federal tax law purposes. For some taxpayers this requires traveling a great distance. For poor taxpayers, the costs associated with traveling for a wedding in another state may very well be prohibitive. This introduces a new kind of unfairness into the tax system with regard to same-sex couples, since benefits available to middle- and upper-income taxpayers will be unavailable to their lower-income counterparts. In this essay, I propose that the Treasury Department enact regulations to allow taxpayers in same-sex relationships who live in states that do not recognize same-sex marriages to elect married status for federal income tax purposes. Such a regime has a precedent in the check-the-box elective regime with regard to pass-through entities in the corporate and partnership tax context. Allowing same-sex taxpayers to elect married filing jointly status on their federal tax returns, even if those taxpayers are unable to get married in their states of residence, will ensure that all taxpayers are entitled to the benefits that Congress intended to bestow on married couples and their families.
Jennifer Bird-Pollan, Electing Fairness: A Check-the-Box-Style Regime for Same-Sex Couples' Tax Filing Status, 6 Elon L. Rev. 251 (2014).