JURIST Guest Columnist Anthony Infanti of the University of Pittsburgh School of Law argues that a coalition in favor of abolishing income tax joint filing may soon emerge…

With the government shut down and debt ceiling crisis now behind us, the federal government has turned its attention to the budget and taxes. But given the deep divide in Congress, there is little optimism that anything approaching real improvement in the tax laws will be achieved anytime soon. However, following the Supreme Court’s same-sex marriage decisions this summer, there is one piece of fundamental tax reform that everyone should be able to agree upon and that would make our tax system fairer: abolition of joint income tax return filing.

For decades, commentators have critiqued joint filing for married couples. They have pointed out that joint filing does not comport with the changing nature of the American family because it leaves out nontraditional families, families of choice, and singles. Being premised on the notion that married couples are a single economic unit, it also fails to reflect the reality that not all married couples pool their income. In addition, joint filing can leave a spouse who did not earn or even benefit from income reported on the joint return with an onerous tax liability, a problem that has led to the enactment of “innocent spouse” relief that has proved far from adequate. And joint filing creates a bias against secondary earners, historically thought of as women, because their first dollar of income is taxed not at the lowest tax rates but at their spouse’s marginal tax rate.

Despite the numerous critiques, conventional wisdom has held that it is politically impossible to abandon joint filing in favor of an individual filing system because of the importance of marriage to American society. But what was previously unthinkable now looks eminently achievable as the interests of the different stakeholders in this debate start to converge.

Naturally, those who have been critiquing joint filing all along, including me, will support a move to an individual filing system. Such a move would both address the critiques outlined above and allow the flexibility to let taxpayers identify their families for themselves, rather than having to fit into a prepackaged family form. Individual filing would allow us to make our tax laws relationship neutral.

Those who view joint filing as a means of encouraging or rewarding marriage, but who oppose same-sex marriage, should now likewise be open to abolishing joint filing. In the wake of the Supreme Court’s same-sex marriage decisions, the IRS has now issued guidance that recognizes many (though, it seems, not all) same-sex marriages for federal tax purposes. Individual filing would certainly take the federal government out of the business of using the tax laws to reward or encourage marriage, the very political problem that made individual filing seem like a pipe dream. But as the list of states recognizing same-sex marriage grows, individual filing would now also take the federal government out of the business of encouraging or rewarding same-sex marriage through the tax laws. As an added benefit, of course, individual filing would eliminate the hated “marriage penalty.” So, those opposed to same-sex marriage may finally have reason to see individual filing as an attractive option.

Those who support legally recognizing same-sex relationships also have reason to favor an individual filing system. The recent IRS guidance for same-sex couples does not seem to cover all same-sex marriages. In particular, it seems to leave at least some couples in “evasive” marriages out in the cold. For instance, it appears to deny legal recognition to couples in Pennsylvania who cross the border into New York or Maryland, who marry there, and who then return to Pennsylvania to live, because their attempt to evade Pennsylvania’s same-sex marriage ban may render their marriages legally invalid. The recent IRS guidance also leaves same-sex couples in states with civil union or domestic partnership regimes out in the cold. With no explanation, the IRS refuses to recognize civil unions and domestic partnerships even if these relationships are legally equivalent to a marriage under state law. Furthermore, the IRS guidance leaves open a number of other important questions regarding the tax treatment of same-sex couples and lays some dangerous traps for the unwary. Thus, for the foreseeable future, the tax situation facing same-sex couples will be challenging, to put it mildly. Individual filing would resolve many of these issues by taking marital status out of the tax equation. At the same time, it would accommodate the large segment of the LGBT community that has questioned the push for marriage equality. So, those who support legally recognizing same-sex relationships should similarly be open to abolishing joint filing.

Strange bedfellows can sometimes make for salutary change in the law. The time is ripe to consider a move to an individual filing system as part of the tax reform debate. This might be the only piece of “real” tax reform that people of all political stripes will be able to get behind in these otherwise divided times.

Anthony C. Infanti is Professor of Law and Associate Dean for Academic Affairs at the University of Pittsburgh School of Law. His scholarly work focuses on comparative legal theory and critical tax theory. He has authored articles on these interrelated topics in a number of legal and tax publications.

Suggested Citation: Anthony Infanti, Strange Tax Bedfellows, JURIST – Forum, Oct. 30, 2013, http://jurist.org/forum/2013/10/anthony-infanti-tax-bedfellows.php