IRS Confirms it is Unlawful for Same-Sex Married Couples to File Jointly

In response to an inquiry about tax filings, the Public Advocate of the United States, Inc. received a letter from the Internal Revenue Service (IRS) confirming that it is unlawful for same-sex couples to file their taxes under any married status, even if the jurisdiction in which the couple lives, recognizes such a union.

The text of the letter is as follows:

Mr. Eugene A. Delgaudio
President
Public Advocate of the United States, Inc.
5613 Leesburg Pike, Suite 17
Falls Church, VA 22041-2912

Dear Mr. Delgaudio:

Thank you for your letter of April 13, 2004, on potential tax issues related to same sex marriages. The Defense of Marriage Act (P.L. 104-199) defines "marriage" for purposes of administering federal law - including federal tax laws - as the "legal union between one man and one woman as husband and wife." It further defines "spouse" as "a person of the opposite sex who is a husband or wife.

Because of this statute, only married individuals under this definition could elect to file a joint tax return. Even though a state may recognize a union of two people of the same sex as a legal marriage for the purposes within that state's authority, that recognition has no effect for purposes of federal law. A taxpayer in such a relationship may not claim the status of a married person on the federal income tax return.

The law is clear on this issue, and we point out the federal definition of marriage when explaining "filing status" in IRS Publications 17, "Your Federal Income Tax," and 501, "Exemptions, Standard Deduction, and Filing Information." In both publications, we introduce the subject of marital status with this paragraph: "In general, your filing status on whether you are considered unmarried or married. A marriage means only a legal union between a man and a woman as husband and wife.

I appreciate your letter and the questions you raised.

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