Deadline Passes For Some But Not All Same Sex Couples for 2007

Originally published on Passive Activities and Other Oxymorons on April 18th, 2011.
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Happy Patriots Day.  Patriots Day is a legal holiday in Massachusetts. "Twas the 18th of April in seventy-five, hardly a man is now alive that remembers that famous day in year."  Great poem.  He left the part about the coin toss that Bill Cosby filled in later:

Suppose way back in history if you had a referee before every war, and the guy called the toss. Let’s go to the Revolutionary War."

[Referee speaking] "British call heads. It’s tails. What do you do, settlers? . . . Settlers say that during the war they will wear any color clothes that they want to, shoot from behind the rocks and trees and everywhere. Says your team has to wear red and walk in a straight line.

If you are ever in the area be sure to visit Minuteman National Park. I couldn't find a statue of the referee when I was there, but it is a big park.  When the due date used to fall on Patriots Day that would extend the deadline for people who filed in Andover.  Apparently nobody is filing in Andover any more.  I haven't really studied the issue, but this is the end of tax season for everybody this year.

It is also the end of the line for many people being able to amend their 2007 returns.  If you have an amended 2007 return that you are planning to drop in the mail today, you might want to consider seeing if there is an IRS office that will accept it within driving range.  "Timely mailed is timely filed" rule does not apply to amended returns.  I have been talking about amended return opportunities for same sex couples since a post in August.  I went into some detail on different scenarios in a post titled Deadline Looms For Same Sex Couples Amended Returns for 2007.  There are two independent events to consider. One is the IRS decision that community property laws should be considered in computing the tax of registered domestic partners.  The other is the decision in Gill v OPM that declared Section 3 of the Defense of Marriage Act unconstitutional.  I won't rehash the whole thing here.

The important point is that the statute of limitations has not expired for people who extended their 2007 returns.  There are also other possible scenarios. If you were audited for 2007 and made a payment in the last two years, the statute might be partially open.  Here is a useful link that discusses the issue.  There are two important points I will emphasize.  If you extended your 2007 return you don't necessarily have until October of 2011 to file an amended return.  If you do not extend the three year clock does not start ticking until April 15 regardless of when you file.  If you extend, however, the clock started when you actually filed, not the extended due date.

The second point is a cautionary tale that I got from Patricia Cain.  I think her blog on same sex tax issues is great.    This caution relates to California Registered Domestic partners.  I'll use Robin and Terry.  In 2006 Robin made $200,000 and Terry made $25,000.  They each extended their returns, which they filed in September.  In October of 2010, they amended their returns to take into account the community property laws.  Robin gets a refund and Terry owes money, but the net is positive (i.e. Robin's refund is greater than Terry's deficiency).  They blew the deadline which in their case was September.  Oh well.  Only it's a lot worse.  Robin's amended return was late, but Terry is claiming an increase in gross income greater than 25%, which is a six year statute.  Ouch.

My observation on this when I first noted CCA 201021050 was that the IRS had indicated that although the ruling would be mandatory for 2010, amending was optional.  So why not just have Robin amend ?  Ms. Cain believes that only amending for the refund return is a strategy that does not pass the smell test.  I have to agree that I wouldn't plan on using it as an air freshener, but I still haven't found that it doesn't work.

I'd let things develop a little further before doing any 2008 amended returns.  The people with the most interesting issues there are the 18,000 same sex California married couples.  They can not amend or amend to conform to community property law like registered domestic partners.  They also have the additional option, less certain but pretty good, of amending to joint returns based on the decision in Gill v OPM.  On  a pure bracket analysis the community property option is probably better, but there is a lot more to joint returns.  If one of them has large capital gains and the other large capital losses, a joint return could be a huge benefit.

I've got a pretty big pile of other developments to work through now that things are quieting down a little at the day job.  If you are following same sex tax issues be sure to keep an eye on the Santa Clara blog, it is very focused.

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.

Amended Returns Due to DOMA Case - What Needs to be Done

Originally published on Passive Activities and Other Oxymorons on February 27th, 2011.
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This blog is my blog so I make the rules and get to decide when I'm going to break them.  One of the rules is that I don't talk about what the tax laws should or should not be.  The motto is "It is what it is. Deal with it."  So I observe, find humor, matter for reflection or practical implications.  When an ordained trumpet player gets a $195,000 "parsonage exclusion" on his second home, I might break the rule and express an opinion.  DOMA has enough people expressing opinions, so I'm sticking with the practical implications.  If you would like some passionately informed opinion check out Gay and Lesbian Advocates and Defenders and the Massachusetts Family Institute.  GLAD was managing the plaintiff side of Gill v OPM.  MFI says it will be seeking to pick up the defense ball that the Administration has abandoned.  Both organizations agree that the case is important.  Other than that they appear to differ.

What I'm thinking about is what Robin and Terry should do. Robin and Terry are a couple of indeterminate gender and marital status who were invented to help me deal with awkward pronoun problems.  For now they are of the same gender, live in Massachusetts and were legally married in Massachusetts in 2007.  If I was writing a novel, this is the church, where they were married, but that level of detail is really not necessary.  The administration's decision doesn't really change my opinion on what needs to be done.  It just increases the urgency a bit, since it makes it somewhat more likely that part of DOMA will be definitively declared unconstitutional.

Robin and Terry have been filing their federal returns as single, because they are law abiding.  I'm going to assume that they have foregone all the clever ideas I described in my post on the tax advantages of not being married for federal income tax purposes.  So there is a chance that if they were allowed to file a joint federal return their aggregate tax liability would be lower.  So can they just wait for the DOMA drama to resolve itself and then file amended returns?  Not exactly.  Any refund claim they make has to be filed before the statute of limitations expires for that year.  Putting aside extensions that means that 2007 is looming.  I'm not going to get into a fine tuned discussion of Emancipation Day and Patriots Day.  The statute expires in the middle of April and the IRS has to receive the claim before the statute expires (No timely mailed, timely filed rule for amended returns). So get this taken care of soon.

How can you tell if Robin and Terry will save money by filing a joint return ?  There is really only one way.  You have to do the return.  Someone might tell you that the wider their discrepancy in income, the more likely they are to benefit from a joint filing and conversely if their incomes are close DOMA is probably saving them income tax.  Computing federal income tax, however, involves a host of thresholds, percentage computation and special limitations.  To take a simple example.  Robin and Terry each make $200,000 per year in salary.  Robin is a brilliant stock picker.  Terry is, well, an idiot when it comes to investing.  Robin has $300,000 in capital gains.  Terry has a $500,000 capital loss carryover that promises to last out the new millennium if Terry should live so long.  On the separate returns there is a positive $300,000 on one return and a negative $3,000 on the other.  On a joint return there is just the negative $3,000.

Another example.  Robin makes $250,000 and Terry makes $75,000.  Terry has $40,000 in medical expenses while Robin has none.  Terry's medical deduction is $34,375.  That would be reduced to $15,625 on a joint return because of the higher 7.5% threshold.

One more example.  Robin makes $75,000 per year and Terry makes $300,000.  Robin owns some rental properties that amazingly lose money.  Robin actively participates in running the properties and deducts $25,000 of the losses, the other $10,000 being suspended.  On a joint return with Terry they would all be suspended unless, of course, Terry owned a real estate brokerage business.  Then they could all be currently deducted.

Then there is the alternative minimum tax.  Don't even get me started.

This particular problem does not require the conceptual thinking of a tax attorney or an algorithm designed by a software engineer.  It requires a seasoned tax preparer, preferably one with good software.

I don't think it is at all likely that DOMA being declared unconstitutional will affect the returns of people who filed as single, whose tax would be higher if they had been considered married.  CCA 201021050 ruled that registered domestic partners in community property states should each report half of their own and their partners income.  The ruling made amending returns for open years optional.  Presumably it would be the same for a DOMA change.  The optional money saving amended returns will only be available for open years, though.  Only those who file claims before the statute expires on each year will be able to benefit from those years.

The other consideration in filing joint returns, which I mentioned in last week's post on this issue is joint and several liability.  If Robin thinks that Terry may have omitted significant income, then Robin should not join in an amended return regardless of the apparent savings.

So that's it for the practical aspect, which I must say seems to be largely neglected in the rest of the blogosphere.  I do have two reflections on the issue.  The first is that I think it is fascinating that someone with a very conservative view of the Constitution should really likely the Gill decision.  It is a states rights case.  It has always been up to the states to say who is or is not married and DOMA is a violation of that principle.  I'm still searching for the honest person that doesn't have the same opinion on Gill v OPM and Perry vs. Schwarzenegger, because of their strong belief in either states rights or federal supremacy.  I think that the Constitution is generally used by activists as a drunk uses a lamppost, more for support than illumination.

The other observation, which may seem slightly mawkish, though I assure it is quite sincere, is that I feel very blessed that I live in a country where GLAD and MFI are fighting this battle with briefs and news releases.  As I noted they both seem to agree that what the court has to say is very important.  I don't think we are always as grateful for that type of agreement, as we should be.

Post Script

The Santa Clara Law Same Sex Tax Law Blog has posted something on the practical points of filing for a refund based on the DOMA decisions.

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.