Don Read, Tax Law for Family Law Attorneys

August 29, 2013

In Revenue Ruling 2013-17, the Internal Revenue Service held, following Windsor that persons of the same sex who were lawfully married under state law would be recognized as married and as spouses for federal tax purposes, even if they moved to a state that did not recognize same sex marriages. However, the Service also held that persons in registered domestic partnerships or civil unions would not be treated as married or as spouses. This appears to be the case even if those persons have all of the rights and responsibilities of spouses under state law.

June 26, 2013

The United States Supreme Court in Windsor held that the federal government must recognize as married spouses of the same sex who are in marriages legally performed under state law. It also held in Perry that the appellants did not have “standing,” and, as a result, left in place the District Court’s holding that Proposition 8, prohibiting same sex marriage in California, was unconstitutional.

June 1, 2010

In response to a private ruling request Don Read submitted on behalf of a client in November 2009, the IRS ruled on May 5, 2010, that California registered domestic partners must equally split their community income when filing their individual federal income tax returns. The private ruling (201021048) was made public in a redacted version on May 28, 2010, the same date a Chief Counsel Advice (201021050) was issued announcing the same rule. The private ruling and CCA also state that the partners must equally split the credits for income tax withheld by the employer from the partners' wages. The CCA says partners can amend past tax returns to switch to this method of reporting, and the IRS informally advises that both partners must choose the same method. For 2010 and later years the new method is required. The private ruling says that each partner obtains ownership of half of the community income by operation of law and not by a transfer, deemed or otherwise. Thus, the sharing of income does not result from a transfer independently subject to gift or income tax.

Don Read first sought to get this ruling as a public revenue ruling in November 2004. When the Treasury Department failed to respond, he filed a private ruling request on April 15, 2005. The IRS did not respond by its guideline date of six months after the request, but in February 2006 it announced in a CCA (200608038) that registered domestic partners could not equally split their income. Strangely, in April 2007, the IRS formally responded to the initial private ruling request by refusing to rule one way or the other "in the interests of general tax administration." After the change in Presidential administrations and the posting of a favorable GLBT position on the civil rights tab of the White House website, Don decided it was time to ask again; and the favorable ruling was the result.

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Donald H. Read - Attorney and Certified Tax Law Specialist     Cell Phone: (510) 409-4927     E-Fax: (413) 677-0609