GOVERNMENT OF THE DISTRICT OF COLUMBIA
OFFICE OF THE CHIEF FINANCIAL OFFICER
John A. Wilson Building, 1350 Pennsylvania Avenue, NW,
Suite 203, Washington, DC 20004
Phone: (202) 727-2476 * Fax: (202) 727-1643 * Web: www.cfo.dc.gov
FOR IMMEDIATE RELEASE
Tuesday May 3, 2005 |
CONTACT: Maryann
Young
(202) 727-0058 maryann.young@dc.gov |
Office of the Chief Financial Officer Releases Tax Ruling on Question of Married, Same-Sex Couple Income Tax Filing Eligibility
Under D.C. Law
District of Columbia Chief Financial Officer, Dr. Natwar
Gandhi, and the Office of Tax and Revenue have issued a tax ruling on
whether the District of Columbia income tax law permits a married,
same-sex couple to file a joint or combined-separate income tax return.
The Office of Tax and Revenue ruling concludes that the
District of Columbia income tax law does not permit same-sex couples to
file joint income tax returns in the District. District of Columbia law
provides that a married couple must have filed and been eligible to file
a joint Federal income tax return in order to file a joint or
combined-separate District income tax return.
The ruling (#2005-01) is available for review at www.cfo.dc.gov
(4:00 p.m.) or by calling 202-727-0058 to obtain a copy by fax or
e-mail.
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GOVERNMENT OF THE DISTRICT OF COLUMBIA
OFFICE OF THE CHIEF FINANCIAL OFFICER
OFFICE OF TAX AND REVENUE
941 North Capitol Street, N.E., Suite 800, Washington
D.C. 20002
OTR TAX RULING 2005-01
Subject: Same-Sex Filing Status
Advice has been requested as to whether a married couple,
under the circumstances described below, can file a Form D-40 return
either on a joint or married filing combined-separate basis for District
of Columbia (“District”) income tax purposes.
FACTS
A same-sex couple was married under the laws of another
state. The couple qualifies as a resident of the District for income tax
purposes.
ISSUE
The specific issue is whether a couple (either
heterosexual or same-sex), under existing District income tax law, is
permitted to file a joint or combined-separate income tax return in the
District where such couple did not or could not file a joint income tax
return with the Internal Revenue Service (“IRS”).
CONCLUSION
As discussed below, because a same-sex couple cannot file
a joint return for Federal income tax purposes, that couple cannot file
a joint return or a combined-separate return for District income tax
purposes. In addition, a heterosexual couple that does not elect to file
a joint return for Federal tax purposes cannot file jointly or combined
separately for District purposes.
LEGAL ANALYSIS
A. Requirement for Filing at the Federal Level
The District of Columbia Income and Franchise Tax Act of
1947 (“Revenue Act”), Pub. L. No. 80-195, 61 Stat. 328 (1947), is
the act that established the District’s current system of taxing
income. The purpose of that Revenue Act, in part, was to bring the
District’s taxing structure more in line with the Internal Revenue
Code (“IRC”). S. REP. NO. 80-280, at 2
(1947). The Revenue Act required all single individuals and all individuals who are married and not living together to
file individual returns, provided their gross income exceeded $1,000.
Revenue Act, tit. V, sec. 2(a)(1). Although the Revenue Act as
originally enacted contained no provision specifically authorizing the
filing of joint returns, the personal exemption provisions explicitly,
and the return-filing-requirement provisions implicitly, of that act
acknowledged that a husband and wife living together could file a joint
return. Revenue Act, tit. V, sec. 2(a)(2), (4), tit. VI, sec. 2(b)
Between 1947 and 1982 the Congress and then the Council
made amendments to the District’s income tax return filing
requirements, personal exemptions, and tax rates that continued to
acknowledge that a husband and wife could file a joint return. For
example, section 106 of the Individuals, Estates, and Trusts Federal
Conformity Tax Act, D.C. Law 4-118, effective June 11, 1982, 29 D.C.
Reg. 1770, involved return filing requirements for a married individual
living with a spouse in the District filing either jointly or
separately.
In 1983, the Council enacted the District of Columbia
Income and Franchise Tax Conformity Act of 1983 (“1983 Conformity
Act”). D.C. Law 5-32, effective October 8, 1983, 30 D.C. Reg. 4013.
The 1983 Conformity Act added, in part, a subsection (e) to title V,
section 1, of the Revenue Act (codified at D.C. Official Code §
47-1805.01(e)). The subsection reads as follows:
(e) Requirement to file joint federal returns. —
Whenever a taxpayer is required by the Internal Revenue Code of 1986
to file a joint income tax return with his or her spouse in order to
qualify for a tax benefit under the Internal Revenue Code of 1986, the
taxpayer and spouse shall file either a joint return or separate returns
on a combined individual form prescribed by the Mayor in order to
qualify for a similar benefit afforded under this chapter.
Emphasis added.
Subsection (e) was one of a number of “technical
amendments to clarify or correct elements of the District’s income and
franchise tax.” D.C. Council Rep., Bill 5103, District of Columbia
Income and Franchise Tax Conformity Act of 1983, at 4 (1983). The
subsection explicitly authorizes the filing of a District joint income
tax return and conditions that filing on whether a taxpayer and spouse
had filed a joint Federal income tax return. In addition, this
subsection allows a taxpayer and spouse to file separate returns on a
combined individual form (“combined-separate return”), provided they
also filed a joint Federal return. In this regard, the legislative
history states that the 1983 Conformity Act “[a]dds a new subsection
which allows a husband and wife to file a combined-separate District income tax return in
order to qualify for benefits normally available only when filing joint
Federal and District returns.” Id. Emphasis added.
After the enactment of the 1983 Conformity Act, the
Department of Finance and Revenue, the Office of Tax and Revenue (“OTR’s”)
predecessor, interpreted D.C. Official Code §47-1805.01(e) to require
the filing of a joint Federal return as a precondition to filing a joint
return or a combined-separate return for District income tax purposes.
This interpretation reflects OTR’s long-standing position and
administrative practice.
B. Federal Conformity
The Defense of Marriage Act, Pub. L. No. 104-199, 110
Stat. 2419 (1996) (“DOMA”) was signed into law on September 21,
1996. Section 3 of DOMA provides definitions of the terms “marriage”
and “spouse” and the meaning of “husband and wife,” applicable
to any Act of Congress. Section 3 has been codified at 1 USC § 7 (2003)
as a general rule of construction.1 Since the IRC consists of Acts of
Congress, DOMA’s definitions apply. Specifically, section 3 of DOMA
states that:
In determining the meaning of any Act of Congress, or of
any ruling, regulation, or interpretation of the various administrative
bureaus and agencies of the United States, the word ‘marriage’ means
only a legal union between one man and one woman as husband and wife,
and the word ‘spouse’ refers only to a person of the opposite sex
who is a husband or a wife.
Prior to DOMA, the IRS generally relied solely on state
law for purposes of determining if a couple were married for Federal
income tax purposes. Rev. Rul. 58-66, 1958-1 C.B. 60 (involving
common-law marriages). Congress enacted DOMA to limit which marriages
can be recognized for purposes of Federal law, and DOMA’s restrictive
language and clarifications are applicable to the IRC. See H. Rep. No.
104-664, at 30-31 (1996).
Based upon DOMA’s definitions of marriage and spouse,
the IRS has ruled that a same-sex domestic partner is not a spouse of an
employee for purposes of the IRC. E.g., PLR 9850011 (1998). That ruling
concerned the proper Federal income tax treatment of providing health benefits to same-sex domestic partners
of employees who qualified for such benefits under certain health plans.2
Pursuant to D.C. Official Code § 47-1805.01(e), a couple
may not file a District joint or combined-separate income tax return
unless the couple filed a joint Federal income tax return and that
couple was eligible to file such a return. IRC § 6013, which is
contained in an Act of Congress, provides that only a husband and wife
can file a joint Federal income tax return. That section variously
refers to a husband and wife as a “spouse” or a “surviving
spouse.” IRC §6013(d)(2) further indicates that in order for a couple
to retain their status as husband and wife for joint return purposes,
they must be legally married.
Because DOMA provides that in any Act of Congress
referring to a marriage, including a Federal tax statute, that the
husband is a man, the wife is a woman, and a spouse is a person of the
opposite sex who is a husband or wife, only a married, heterosexual
couple may file a joint Federal income tax return. A married same-sex
couple may therefore not file a joint Federal income tax return.
District income tax law provides for automatic Federal
conformity. Thus, under automatic Federal conformity, whenever Congress
amends a provision of the IRC that is cited in a District income tax
law, the District law is automatically amended to incorporate the
revised provision of the IRC unless the Council legislates a rejection
of that revision. D.C. Official Code §§ 47-1801.04(28A), 1816.03(a).
Accordingly, it is concluded that because a married,
same-sex couple may not file jointly for Federal tax purposes, the
couple cannot file a joint or combined-separate income tax return under
the District’s income tax laws. OTR believes this conclusion will not
change even if the District recognizes the validity of an out-of-state
marriage involving a same-sex couple. The eligibility to file such
returns depends on meeting Federal requirements for filing a joint
return, not whether the District recognizes the couple as legally
married. In addition, if a heterosexual couple fails to file a joint
return for federal income tax purposes, it cannot file jointly or
combined-separately for District income tax purposes.
1. This ruling addresses DOMA’s definitions of
“marriage” and “spouse” and its meaning of “husband and
wife” as applied to the IRC and does not provide advice on any of
DOMA’s other applications.
2. Although the IRS position is that a private letter
ruling can only be relied on by the taxpayer to whom the ruling was
issued, the ruling nonetheless suggests that the IRS will interpret any
Federal income tax statute that refers to “marriage,” “spouse,”
or “husband and wife” pursuant to DOMA.
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