Michael Asimow, Professor of Law Emeritus, UCLA, and Visiting Professor, Stanford Law School, sent me an interesting inquiry the other day. It involves the question of how Same-Sex Married Persons (SSMPs) in California should file their state income tax returns. Some of us have been so busy focusing on how SSMPs file their federal tax returns that the question of how to file in California sort of slipped by us. Professor Asimow has accepted my invitation to write a guest blog post on the point.
Filing status for SSMPs and RDPs
As we know, DOMA requires that SSMPs and RDPs be treated as unmarried for federal tax purposes. But what about California returns? Rev. & Tax Code §18521(a)(1) provides: “Except as otherwise provided in this section, an individual shall use the same filing status that he or she used on his or her federal income tax return filed for the same taxable year.” There is an explicit exemption for RDPs, who must file either joint returns or married person-separate returns in CA. Rev. & Tax. C. §18521(d). There is no similar exemption for SSMPs. Thus, the clear language of §18521(a)(1) requires SSMPs, who must file as single taxpayers at the federal level, to file as unmarried single taxpayers in California.
This becomes quite important after the historic switcheroo by the IRS, requiring community property income splitting for federal tax purposes. The letter ruling refers only to RDPs but should be equally applicable to SSMPs. It seems like an amendment to §18521 would be a really good idea just about now. SSMPs should be required to file California joint returns (or married person-separate returns) like RDPs.
Interestingly, the Franchise Tax Board has rushed to fill the gap. Under Pub. 776, the FTB says that SSMPs must file California joint returns or married person-separate returns. This seems completely right as a matter of policy and good common sense and completely wrong as a matter of statutory interpretation.
Michael Asimow, Stanford Law School, Guest Blogger
