New York Marriage Equality - Tax Implications

Originally published on forbes.com on June 29, 2011.
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Wedding  Bells for Robin and Terry

I’ve been agonizing over what my first post on the Forbes platform should be. Fortunately, Governor Cuomo and the New York State Senate have bailed me out.  New York now has marriage equality. The tax issues of same sex couples have been a significant focus of Passive Activities and Other Oxymorons (The blogspot title that is too long for Forbes). Robin and Terry are a couple of indeterminate gender and marital status, whom I invented to help me avoid awkward pronoun problems. Over the past year they have had a wide range of incomes and a variety of professions. They are currently of the same gender and live in Greenwich Village. They called me excitedly. They are planning an open air wedding in Washington Square. What’s really neat is that they are thinking about having the reception at McSorley’s, the oldest bar in New York City. Don’t want to miss that. Back when the drinking age was 18 and people were sometimes careless about proof of age, McSorley’s was the favorite watering hole of Xavier High School students. I was thinking of making Robin and Terry Xavier graduates, like me, but I’m not sure, maybe they went to Holy Rosary Academy in Union City, like my sister.

The tax issues of a same sex couples are rather complicated. By getting married, they will make them even more complicated. Of course if they want to be super complicated they could become California registered domestic partners. I’m holding off on introducing Robin and Terry’s friends Blynn and Ashley for now, so I won’t get into that.

Defense of Marriage Act

What complicates same sex marriage is the Defense of Marriage Act. According to Section 3 of DOMA, in order for a marriage to be recognized for purposes of any federal law it must be between a man and woman and a spouse has to be someone of the opposite sex. According to a 2004 GAO report there were 1,138 provisions in the United States Code in which marital status enters into determining eligibility for "benefits, rights and privileges". Probably the one that generates the most excitement is the ability to file a joint return. A group called "Refuse to Lie"has started a principled civil disobedience campaign around the issue. Much as I admire that type of thing, my attitude in tax matters is "It is what it is. Deal with it." I have no expectation that things are going to be fair or make a lot of sense.

The ironic thing is that a couple not being married for federal income tax purposes can be advantageous. There is a "marriage penalty" built into the rate structure that kicks in at fairly high income levels, where there is not significant disparity in income. Even better a couple who does some planning can exploit the fact that they are unrelated individuals. I gave a few examples of these opportunities in a post entitled "Just Because They Won’t Let You Do It Doesn’t Make it A Good Idea." One example would be Terry’s expensive business use car, that has a lot of basis left relative to its fair market value due to depreciation limits. Terry can sell the car to Robin and take an ordinary loss.  

Most planners and tax preparers don’t think much about collection issues, so they often ignore the biggest down side to filing joint returns. Joint and several liability. If Robin and Terry are allowed to file a joint return and Robin goes missing, the IRS can collect the entire tax from Terry. There is something called "innocent spouse" relief, but it is not easy to qualify for. I’ve mentioned this in a number of posts including one titled "What’s So Great About Sliced Bread?"

There are four different individual federal tax tables. The worst is Married Filing Separately. Next is Married Filing jointly. Then comes Single. Then comes Head of Household. Of course since you are sticking two peoples income together in the MFJ table it can come out better than two single returns. It will tend to work out that way if you have disparate incomes and one of them is pretty high. It does not end there though. There are a host of phase-outs and thresholds that are tied to adjusted gross income. So if Robin has a lot of medical expenses and Terry has none, the total of deductible medical expenses will be lower if you combine their returns. On the other hand viewing the couple as a single taxpayer might produce very significant savings if, for example, one of them has large capital gains and the other has large capital losses.

Most married couples don’t get to choose between Married Filing Jointly and Single (or Head of Household).  They can choose Married Filing Separately but that is almost always worse. At this point in time, though, there is an argument that gay married couples actually can make that choice. Here is why. Under the Defense of Marriage Act, they are not considered to be married for federal income tax purposes. So nobody can complain if they each file as single (except those Refuse to Lie people, but we are being practical here, not idealistic). DOMA has been the subject of litigation, though. In Gill v OPM, a Massachusetts federal district court ruled that Section 3 of DOMA is unconstitutional. There were a variety of plaintiffs in the case contesting a denial of a variety of federal benefits (probably not all 1,138). Included in the plaintiffs were couples who would have benefitted from filing joint returns. A subsequent decision on the estate tax unlimited marital deduction also found Section 3 of DOMA to be unconstitutional. The Justice Department is supposed to defend the constitutionality of statutes passed by Congress regardless of what the current administration thinks of them. In the case of DOMA, however, the Justice Department has decided to throw in the towel.  They concluded that the constituionality of DOMA is indefensible.  Now conservatives have a perfectly good face saving way to quit on this issue.  You could look at it as a states rights issue.  They are not doing it though.  Congress has hired counsel to continue the defense of DOMA, which ironically provides a temporary subsidy to gay marriage.

 Should Robin and Terry Marry - Their Accountant Weighs In

 Let's put DOMA aside for a moment.  Suppose Robin is making $200,000 per year and does not itemize.  At 2010 rates that will produce a federal tax of about $48,000.  Assume that Terry is not making anything.  A joint return will produce a tax of about $39,000.  Just for fun let's assume that Robin loves Terry very much, but still thinks that Terry is kind of sketchy in some ways and it would be unwise to file a joint return.  Married filing separately will cost Robin $52,000.

 Of course if DOMA applies Robin is single for federal purposes regardless and has a federal tax of $48,000.

Marriage Equality - Be Careful What You Wish For

So DOMA costs Robin and Terry about $9,000 in federal taxes.  If they had been married in Massachusetts - dare I suggest Northhampton- and then moved to Greenwich Village, the state of New York would have recognized their marriages, for the most part.  (Even before last week, New York recognized same sex marriages performed in other states).  Unfortunately, this did not include state income taxes, where by statute, marital status is the same for state purposes as it is for federal purposes.  The difference is not large about $1,000, but it kind of adds insult to injury.

I'm sure the Refuse to Lie people wouldn't be moved by this observation, but it is worth looking at what would happen if Robin and Terry each made $200,000 giving them a joint income of $400,000.  Under DOMA they are both single, each paying $48,000 for a total of $96,000.  If permitted to file a joint return, their tax would be $108,000.  So DOMA is saving them $12,000 and another $4,000 in state and city tax.

At least according to one commentator , it is unclear as to whether the new marriage equality bill overrides the revenue law that ties marital status to what is determined at the federal level.  From the viewpoint of a preparer, I would hope that it does not.  New York has a fairly complicated state return.  If you have a couple whose return has a lot of moving parts doing a joint return for New York and two single returns for federal will raise a host of complications particularly if there are carryovers into subsequent years. 

Refuse to Lie ?

My advice to Robin and Terry would be to go ahead and "lie" if filing as single saves them money.  If a joint return would be a better deal, there are two options, depending how wild and crazy they are feeling.  One is to just go ahead and file a joint return.  There is certainly a reasonable basis given the way court decisions on DOMA have gone in the last year.  The more conservative course is to follow DOMA and file as single, then subsequently amend before the statute of limitations expires.  There should be guidance from the New York State Department of Taxation and Finance on what position they will be taking on the effect of the marriage equality bill fairly soon. 

I'd also consider advising them to wait until they can have the wedding at St. Patrick's Cathedral.

It's 10:00 PM Should You Know Where Your IRS Agent Spouse Is ?

Originally published on Passive Activities and Other Oxymorons on May 6th, 2011.
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PMTA 2010-068

I've got a huge backlog, so I probably shouldn't be pushing this one to the head of the list but I can't help myself.  First of all it's been months since any PMTA's have been released.  I was afraid that they had been abandoned.  PMTA stands for Program Manager Technical Assistance. My first scoop was about a PMTA concerning lien releases for short sales.  This one is of little practical import, but I couldn't resist it since it mentions one of my favorite neighborhoods and points out a neat aspect of working for the IRS.  There's also something about carrying guns.  The PMTA is about the potential for improper disclosure of information.  There ae two questions.

The first is whether agents can send people with powers of attorney an email acknowledging receipt of something:

When a POA sends a CWA to the IRS, the POA often requests acknowledgement from the IRS that the IRS received the CWA. CWA examiners would like to send a return email to the POA which states “Rcvd.” The email would not contain any other identifying information.

Silly goose, of course not:


An IRS examiner may not send an email to a taxpayer's power of attorney to acknowledge the IRS's receipt of a Central Withholding Agreement because the acknowledgement of receipt would be return information and the transmission of the acknowledgement by unsecured email would violate the IRS's policy against the transmission of return information by unsecured email.

Can't be too careful.  That "Rcvd" might fall into the wrong hands.

That's not the fun part of the PMTA.  Here is the fun part:

Whether an examiner may notify his spouse or other relative of his whereabouts when he conducts compliance activities at a taxpayer's business at night


What do you think ? - Well, of course not.

An IRS examiner may not notify his spouse or other relative of his specific location when he conducts compliance activities at a taxpayer's business or place of engagement at night if the location of a taxpayer's business would identify the taxpayer. An examiner may tell his relative his general location while conducting compliance activities in the field at night or give a phone number where his family can reach him if necessary.

Robin and Terry have had a lot of work to do in the last year.  They are the couple of indeterminate gender and marital status who help me avoid awkward pronoun problems.  I introduced them in a post on registered domestic partners and they have been featured in several posts, like this one, on same sex couple tax issues.  For this post we can leave their gender entirely indeterminate (same, different, whatever).  Robin is an IRS agent and Terry is a police officer.  Although the PMTA says that an IRS examiner cannot notify "his spouse or other relative", I think from the context of the memo Section 3 of DOMA is not relevant.  In other words they mean that Robin cannot tell anybody outside the IRS the destination for the night's investigative activities.

The memo goes on to provide an example of the level of disclosure that might be permitted:

For example, an examiner may tell a relative that he is in the Chelsea neighborhood in Manhattan. Because of the vast number of taxpayers that reside, do business, or perform in the Chelsea neighborhood, this information would not identify the taxpayer. However, as discussed above, the examiner could not tell his relative what business or venue in the Chelsea neighborhood he had visited. Similarly, an examiner could tell his relative that he planned to conduct compliance activities at the Empire State Building so long as he did not state which office within the building he planned to visit. Examiners may also tell their relatives that they have arrived safely at their location, how long they intend to be at the location, when they expect to be home, and give their relative a phone number where their relative can reach them.

 Chelsea is a very small geographic area, but as noted it has a lot in it including my high school.  Presumably if Robin and Terry lived in Wyoming and Robin told Terry what county the business Robin was auditing was in, Terry would be able to narrow it down to three or four businesses.  The IRS is sensitive to the hostitlity that revenue agents, like Robin might be subject to, which is why Robin would like to be able to disclose whereabouts to Officer Terry. They address it in the memo:

Examiners are also encouraged to utilize the IRS's armed escort program if the taxpayer has been designated a potentially dangerous taxpayer.


That really caught my interest and I now have more useless information such as whether the escort will be from CI or TIGTA.  You can check that out here, if you would like.  One more reason for me to not work for the IRS.  I'm too old for the gun toting jobs so if I got assigned to something like checking on strip clubs, I might need an armed escort.  It could be, though, that my protector will be a young woman.  I mean how embarassing is that ?  On the other hand I would be absolutely prohibited from telling my SO what I was up to.  At least that would be a comfort.

Deadline Looms for Same Sex Couples 2007 Amended Returns

Originally published on Passive Activities and Other Oxymorons on April 1st, 2011.
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There have been major developments in the tax law affecting same sex couples in the last year.  The attitude that I have as a tax advisor is "It is what it is.  Deal with it."  Whether its fair or makes sense is an interesting question, but not a practical one.  When I look at the developments my thought is "What should Robin and Terry do ?"  Robin and Terry are a couple of indeterminate gender and relationship status whose role in life is to help me avoid awkward pronoun problems.  It's been a big year for Robin and Terry.  I've decided that for this post I need to introduce some of their friends.  One couple is Alex and Marty.  The other is Blynn and Ashley.  They are going to be busy this week because despite my advice they put off looking at their 2007 returns to see if they should amend.

Robin and Terry, at least for now, are of the same gender and were married in Massachusetts in 2007.  Alex and Marty are of the same gender and are California registered domestic partners.  Blynn and Ashley, who know how to act quickly when opportunity arises, are a California same sex married couple.  They were married in San Francisco in 2004.  Same sex marriage in California has a fairly convoluted legal history.  It's arguable that in 2007, there were no same sex married couples in California, but thanks to litigation decided in 2008, now there were.

The development that affects Robin and Terry is the decision in Gill v OPM, which declared that Section 3 of the Defense of Marriage Act (DOMA) is unconstitutional.  DOMA provides that for all purposes of federal law same sex marriages are not recognized.  The Obama administration has announced that it will no longer defend DOMA in court, although it will still be enforced pending appeals.  In order to benefit from the ultimate ruling, however, a claim must be filed while the statute of limitations is still open.

For 2007, Robin and Terry filed their returns as single.  It may be that they would have paid less tax if they had been able to do a married filing joint return.   I discussed the question of whether a joint return is better in a recent post, which was republished in Bay Windows.  The short answer is that there are enough potential complications that you really need to do the return in order to tell.  Now, Robin and Terry were required to file a joint Massachusetts return so it may be that somebody already prepared a pro-forma federal joint return for them.  That's how we would have done it anyway.  So one way or another Robin and Terry should compute a joint return and see if it would save them money.  It's not a sure bet that Gill v OPM will ultimately be upheld, but there is quite a good chance.  Unless there is a timely claim for refund, though, it won't do them any good for their 2007 return.

Alex and Marty have a situation that is more complicated, but not as uncertain.  CCA 201021050 holds that the IRS will recognize California community property law as it relates to registered domestic partners.  So Alex and Marty will still file as single (or head of household), but each will report half of the "community income", which includes wages.  This holding is mandatory for 2010 returns and is causing a lot of heartburn.  IRS has reissued a Publication 555 to help explain it. One of the subtleties in this is that not all income is community income and it is only community income that is split. The CCA made filing amended returns for open years optional.

There are a host of phase-outs and thresholds and offsets such that it is really impossible to say with certainty what will happen when you start moving income from one return to another.  You have to look at each return.  Let's say however that Alex and Marty don't have much other than their jobs and that Alex gets paid a ton of money by Microsoft as an independent contractor and  Marty works at Starbucks.  Most likely if they prepare amended returns for 2007 Alex will get a big refund and Marty will owe a lot of money.  They will, however, net positive, at least on tax, if not on interest.

I did come up with a nasty idea.  I've only found one other commentator that has made a similar observation:

Observation: The CCA doesn't say that if one partner amends his or her return, the other must do so as well. So, feasibly the higher income partner could amend his or her return to claim only 50% of his or her earnings while the lower income partner does nothing (i.e., doesn't file an amended return to pick up his or her 50% share). However, as withholding must also be split 50/50, it may be necessary to file both returns to get the full benefit of any savings. Also, the IRS may well require both partners to amend under these circumstances.

That comes from William Bischoff from a National Tax Advisory (NTA-743) (I can't track down a free link to it.  I got it from my RIA Checkpoint subscription).  I have not found anything to indicate that the IRS has done something to prevent being whipsawed on this issue.  So if Alex hurries out and amends for 2007, maybe kind of forgetting to mention it to Marty, it may well be that Marty will be protected by the statute of limitations.  I doubt that there is a SWAT team sitting in the service centers ready to issue timely notices of deficiency to the registered domestic partners of people filing refund claims under CCA 201021050, but I never, ever, give advice even to hypothetical clients based on the audit lottery.  This particular observation is why I titled my first post on this topic Windfall for "Unmarried" Taxpayers.  Other commentators that I have noted are good doobies on this issue.  I guess I would say that if Alex amends, maybe Marty should too, but that maybe Marty doesn't have to be in such a rush about it. Also I should note that if Marty had income low enough to not have filed a 2007 return (or didn't file one anyway), there is no statute of limitations protecting Marty.

I won't spend much time on Blynn and Ashley.  They do not represent a very large group of people.  San Francisco issued same sex couples marriage licences for a brief period in 2004.  That was shut down, but the law that declared it illegal was declared unconstitutional in 2008 opening a state wide window, which was closed in November 2008 by Proposition 8.  So of the approximately 18,000 legally married same sex couples in California only a small number would have been arguably married in 2007 (at least in retrospect).  What is interesting about them is they can either filed an amended joint 2007 return like Robin and Terry or amended 2007 community returns like Alex and Marty.  The Alex and Marty option will probably work out better, but I find their situation particularly interesting so I thought I would mention it.

There is another point, which I cannot emphasize enough.  If you might benefit from amending your 2007 return and you did not put it on extension,get the amended return done NOW.  In CCA 201052003, it was noted that the "timely mailed, timely filed" rule only applies to returns that are "required to be filed".  So an amended return to be timely must be received by the IRS before the statute expires.  I'm not going to get into whether that is April 15th or April 18th.  Don't take chances.  Get it done this week and send it return receipt.

P.S.

Patricia Cain of the Santa Clara Same Sex Tax Blog has set me straight on one issue.  The 18,000 figure that I picked up from that unimpeachable source, Wikipedia is the number of California same sex marriages in 2008.  She indicates that there were over 4,000 licenses issued to same sex couples in San Francisco in 2004, but none of those marriages were valid.  So it may well be that not only do Blynn and Ashley not exist, there may actually not be anybody like them.  The principle would apply for 2008 amended returns, but there is no rush to get those done and it is probably better to wait for more guidance.

Ms. Cain does not like the idea of the high income partners amending and the other partner letting it slide. It's not my all time favorite idea either, I just haven't figured out why it doesn't work.  You really need to go to the Santa Clara blog for a thorough treatment of same sex tax issues.  They are very focused on the issue and don't get distracted  by mercenaries and celebrity underwear.

Another point that I also picked up from Ms. Cain that I should have thought of myself is that the lower earning partner might be subject to a six year statute of limitations if his or her share of community income would be 25% greater than the income he or she reported..

Congress Provides Subsidy to Gay Marriage

Originally published on Passive Activities and Other Oxymorons on March 14th, 2011.
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The official position of this blog on all matter of what the tax law should be is "It is was it is. Deal with it."  I observe and seek practical pointers, humor and matter for reflection.  I break my rule of indifference to what "should be" from time to time. The tax ramifications of the Defense of Marriage Act provide enough interesting items, that there is no need for my opinion.

Just to bring you up to speed, Section 3 of the Defense of Marriage Act provides, that, for all purposes of federal law, marriage is only between persons of opposite gender and the word spouse means someone of the opposite gender.  Several states, including Massachusetts, allow persons of the same gender to marry.  Such persons are considered either single or head of household (depending on their circumstances) for federal income tax purposes.  Accordingly they are not eligible to file joint returns.  I have a mythical couple called Robin and Terry, whom I invented to avoid awkward pronoun problems.  Robin and Terry are of indeterminate gender and marital status.  For purposes of this post, they are of the same gender and were married in Massachusetts in 2007.

Section 3 of DOMA has been the subject of litigation.  The Federal District Court of Massachusetts in Gill v OPM has ruled that it is unconstitutional, because it has no rational basis.  The Justice Department had indicated that it would appeal the ruling.  Generally the Justice Department defends the constitutionality of laws passed by Congress regardless of what the current administration thinks of them.  The view is that "unconstitutional" and "bad idea" are not synonymous.  The Justice Department has recently, however, concluded that Section 3 of DOMA is indefensible.  So the Administration will not fight it in court any more.  They will continue to enforce it.  So as far as the IRS is concerned Robin and Terry are still not married.

If I were in charge of the vast right wing conspiracy what I would do is have Congress now repeal Section 3 of DOMA.  What they would say is that they were repealing it not on an equal protection theory, but because it violates the 10th Amendments.  It's up to the states to decided who is or is not married and if a couple of states are infected by crazy liberal ideas, the rest of just have to live with it.  Besides, there is some evidence that on net the overall collection of federal tax would be higher if same sex marriages were recognized for federal purposes.

Instead conservative congressman are going to have Congress take up the defense of DOMA in the courts.  By doing this they are, in effect, subsidizing same sex marriages.  Here is why.  People whose marriages are recognized for federal taxes can file either jointly or married filing separately.  People whose marriages are not recognized for federal purposes file as single or head of household depending on their circumstances.  Of the four rate tables married filing separate is the worst.  I just ran the numbers on someone who was single as if he were married filing separately.  It cost him about $4,000.  Taking two married filing separate returns and turning them into joint will almost always save money (An exception might be if one of them had large medical expenses).  Taking two single returns or a single return and a head of household return and turning them into a joint return is much more unpredictable.  It could go either way. ( I should also point out that there is a benefit to the government from joint returns that taxpayers and planners often ignore. By filing a joint return the taxpayers assume joint and several liability. That means the government can collect the whole tax from either one of them.) So the ideal situation would be for you to be able to choose on a year to year basis whether you are single or married for federal income tax purposes.  The unwillingness of Congress to throw in the towel on Section 3 of DOMA, in effect, puts Robin and Terry in that situation.

Under the law in effect now Robin and Terry are single for federal income tax purposes.  If that gives them the most favorable tax, they can just file that way and not worry.  I don't think there is any likelihood that if Section 3 of DOMA is declared unconstitutional there will be examinations of returns of people who have been filing as single.  If I was in charge of the vast right wing conspiracy, I would certainly be threatening that.  "You want marriage equality.  Fine you have it.  Send in four grand."  When the IRS recently ruled that registered domestic partners in community property states have to split their income, they made filing amended returns for open years optional.  Presumably if Gill v OPM is upheld, there will be a similar outcome.

Because of Gill v OPM, however, Robin and Terry have a reasonable basis for filing a joint return if that saves them money.  The conservative thing to do is to file as single and then put in a claim for refund, but if they are feeling wild and crazy they can just file the money saving joint return and their only exposure should be the interest.  Now I am precluded from giving advice based on the audit lottery, but an observation I would make as a policy matter, is that there is nowhere on the return, where they ask you what your gender is.  It is conceivable that I could prepare Robin and Terry's return and engage to represent them in an audit without knowing what the gender of either of them was.  If they told me they were of the same gender, I'd tell them all about DOMA and Gill v OPM, etc, but frankly if Robin came in with all the information or we handled everything through the mail or our portal, it would not occur to me to ask.  It's a little antediluvian, but you have to be careful about asking guys my age whether they are married to a guy.

So, there is a very respectable conservative argument for repealing Section 3 of DOMA (States rights) and continuing the court fight means that same sex married couples, in the aggregate will be paying less federal tax.  Is this the working of the vast left wing conspiracy ? Is the vast right wing conspiracy shooting itself in the foot ? Or is much of the world run by random knee jerk reactions without much long term thought ?  To me when it comes to tax law my motto is "It is what it is. Deal with it." How it gets that way is a little mysterious and of little practical importance.

I think I'm going to give Robin and Terry a break for a while.  There are some other developments that I will focus on in the next few posts.

PAOO Make Bay Windows - Next Stop Ellen

Originally published on Passive Activities and Other Oxymorons on March 11th, 2011.
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If moral disapprobation of homosexual conduct is "no legitimate state interest" for purposes of proscribing that conduct...what justification could there possibly be for denying the benefits of marriage to homosexual couples exercising "the liberty protected by the Constitution"? Surely not the encouragement of procreation, since the sterile and the elderly are allowed to marry.

When I started this blog, I didn't think I would be focusing on GLBT issues and actually I'm not.  There is a tax blog that does.  It is called Santa Clara Law Same Sex Tax Law Blog.  I'm largely driven by my raw material.  It does work out however that of my top ten posts in terms of traffic, three are of GLBT interest.

My top ranked post concerns the deductibility of gender reassignment surgery.  It owes its popularity to endorsements by two friends, noted science fiction author John Sundman and activist Cecilia Chung.  John and I attended the same high school a million years ago.  An even more famous alumnus of the same high school wrote the passage that is quoted above. Cecilia and I are on the board of Just Detenion International, which is dedicated to ending sexual abuse in all forms of detention.

My sixth ranked post is about an IRS ruling (CCA 201021050) that holds that registered domestic partners in community property states should be splitting their income.  The ruling made filing amended returns for prior years optional.  I introduced Robin and Terry, the couple of indeterminate gender, who help me get around awkward pronoun problems.  The question I ask is what happens if Robin files for a refund and Terry doesn't file a balance due return.  The Santa Clara Law people are not as evil minded as I am.  At any rate, I was one of the first bloggers to notice that ruling and it inspired in me the fantasy that is the subject of this post.

My ninth ranked post (and climbing) is on Gill v OPM, in which the Federal District Court of Massachusetts ruled that Section 3 of DOMA (Defense of Marriage Act) is unconstitutional. Section 3 of DOMA holds that regardles of state law marriage for all federal purposes is between a man and a woman and spouse means someone of the opposite sex.  Among the plaintiffs in Gill were some people who would have saved money if they had been able to file joint returns. I make the point that people who might benefit from this ruling need to file refund claims before the statute of limitations expires.  2007 is looming.

So the grand announcement is that the post on amended returns has been republished by Bay Windows, New England's premier gay newpaper.  So that brings the fantasy I had when I first put up the comment on the then very obscure CCA 201021050 - an interview on the Ellen Degeneres show - one step closer to reality.  Also by comparing the Bay Window version to my original you can see how good this blog would be with some professional editing.

Just to show you that there are depths of self absorption beyond blogging about your owns blog, I'm going to explain the quotation above that has been used to support gay marriage with a pointless anecdote from my high school.  The faculty of Xavier High School consisted of Jesuit priests, scholastics (who were on the way to becoming Jesuit priests), lay teachers, who were like regular guys and  the Military Science faculty.  Xavier, at that time, required all students to be in Junior ROTC.  The Military Science faculty consisted of an active duty Army officer and a couple of active duty senior NCO's and a few more retired NCO's.  With the exception of Father Hareiss, who had been drafted into the Wehrmacht while a young Jesuit and regaled us with stories of the street fighting in Munich "Venn, he vas a young boy in Chermany", the most colorful faculty members were the retired sergeants.

  Among them was Sergeant Daley, from whom we learned in the basement rifle range, that a certain unmentionable type of hair is actually a unit of measure.  Sergeant Daley told us many things that we would need to know as rookie Army officers (which almost none of us became).  One of those things was the unfortunate chronic shortage of blank ammunition to create realistic training exercises.  The other was an anecdote about the dangers of blank ammunition.  In lieu of a bullet a blank round had a small wad of material that is dangerous at very close range.  He illustrated this point with a story about someone firing a blank with his rifle pointing down in a crowded room.  At that range the wadding material could penetrate the top and bottom of a combat boot and the intervening biological material.

So what does that have to do with the above quote about gay marriage.  Justice Antonin Scalia wrote that passage in his dissent in Lawrence v Texas which ruled anti-sodomy laws were unconstitutional.  The passage has since been used to defend gay marriage.  You see Justice Scalia attended Xavier even longer ago than John and I did.  When he attended Xavier, Sergeant Daley was still on active duty and unavailable to warn young high school lads about shooting themselves in the foot.

Time For Robin and Terry To Amend

Originally published on Passive Activities and Other Oxymorons on February 23rd, 2011.
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This is a bonus post.  In October, I wrote a post on whether Massachusetts same sex couples who are married should consider filing amended returns.  It was follow-up to a slightly longer treatment I had done on Gill v OPM which had held that portions of the Defense of Marriage Act were unconstitutional.  DOMA has two major effects.  The first is that states that do not allow same sex marriage for their own residents do not have to recognize the validity of marriages performed in other states.  The second is that for all purposes of federal law marriage is defined as being between one man and one woman.  Gill was about the second piece of DOMA.  It was an action by several people who had been denied a variety of federal benefits by DOMA including the right to file an amended return.The effect of Gill was suspended pending appeal.

  Robin and Terry are a mythical couple of indeterminate gender and marital status who were invented to help me deal with awkward pronoun problems.

The news is that President Obama has ordered the Justice Department to stop defending DOMA.  Here is a link to the New York Times story.

In his letter, Mr. Holder said the administration legal team had decided that gay people merited the protection of the “heightened scrutiny” test, and that under that standard, the Defense of Marriage Act was impossible to keep defending as constitutional

See my more extensive follow-up on this.