Gideon Alper, who publishes the Gay Couples Law Blog, which discusses new developments in same-sex family law and estate planning, writes:
The IRS should recognize gay marriages not just as a matter of equality, but also to encourage socially beneficial behavior in gay relationships.
Fred Silberberg, a Los Angeles attorney that has practiced family law for over 20 years, wrote in the Huffington Post about the unnoticed effects of the Defense of Marriage Act.
Specifically, he talked about a problem a male client was having with alimony payments to the client from the client’s same sex ex-partner. Because the IRS doesn’t recognize gay relationships, the alimony is not deductible. But if the client had been married to a woman, his wife would be able to deduct alimony payments she makes to him.
The government allows people to deduct alimony payments to encourage ex-spouses to make support payments. The deduction gives one spouse a financial incentive to support the other after a breakup. This behavior is socially beneficial—it lets someone who relied on her spouse’s income to maintain access to it. Fred writes:
“It is the tax-deductibility aspect of spousal support that allows us, as lawyers, to try to come up with creative ways to address the issue if at all possible. We try to maximize the tax benefit and use it in a way that reduces overall income tax liability to maximize the dollars that exist to benefit the now-separated family.”
The impact to Fred’s client and his ex-partner was particularly large because their income levels were high enough that they were paying federal income tax at the maximum rate. Because his ex-partner has no tax incentive to make alimony payments, the client may not receive the support he needs to continue his lifestyle after the dissolution.
But deducting alimony payments is just one of the many income tax deductions available to married (and divorced) couples. These deductions encourage couples to do things that the government believes are good for each other and society in general.
Because the IRS doesn’t recognize gay relationships, the government can’t give the same encouragement to same sex couples. Repealing DOMA, then, would not just put same sex and opposite sex couples on an equal footing–it would also allow the government to use tax laws to encourage gay couples to make socially beneficial choices.
This is what happens when the government tries to socially engineer through the tax code. If we had a flat tax or a national sales tax, this article would never have been written. The fact that gay couples feel discriminated against within the tax code can be corrected by eliminating all exemptions, not by adding more. When one’s lifestyle decisions dictate the amount of income tax one pays, that is discrimination. Don’t have any kids? You pay more. Don’t own a home? You pay more. And on and on. That is discrimination any way you look at it and giving gays a loop hole doesn’t correct any of it.
I agree with the premise of the post that gay couples should have the right to marry, but to bring it down to a tax deduction just seems, well silly. How about the fear of not going to jail for failing to comply with a Court order? Isn’t that good enough reason for someone to pay alimony? I agree with the equal rights, which is why I am FOR gay marriage.
While I agree with your point about making the tax code less complicated, not more, garagefather, I think that repealing DOMA is also an instance of making things less complex, and less regulated, as well. Right now, with DOMA, we have the Federal government refusing to acknowledge legal marriages issued in Massachusetts, Iowa, Vermont (now), and formerly California. In my opinion, this is an egregious violation of state’s rights. It is very much not the place of the federal government to interfere with marriage laws. Marriage is a state issue, and if a state approves a marriage license, it should be recognized fully by the federal government.
And that includes the IRS.
Kelly, I could tell from prior postings that you were a liberal damocrat, and I am not. I don’t understand why anyone would ever want to refer to the Huffington Post, since it is nothing but a left wing proganda machine.
But you opened the can of worms here, I didn’t. If it is fair and equitable for two homosexuals to “get married” then it has to be fair and equitable for two men and one woman to “get married”. If it is fair and equitable for two homosexuals to “get married” then it has to be fair for a man and his sister to get married. If it is fair and equitable for two homosexuals to “get married” then it has to be fair for a man to marry his mother, after his father has died.
The real reason to marry is to procreate.
The damocrats first wanted to destroy the family and marriage with it’s assinine rules concerning the earned income credit and welfare. Since LBJ’s socialist measures, the percentage of marriage in poor families is abysmal besides that it is pathetic all as a result of their socialist agenda. After all everything has to be done to make the children allegiance to the State instead of the family and the Church. Why they would ever want to give more tax benefits to two parents not married then if they are married is preposterous but that it the way it is big time. And the agenda of rewarding parents for not being married allows the largest tax gap system in the cheating both in earned income credits as well as welfare.
Under the socialist agenda mentioned above, two parents not married one person claims the other does not live there and gets subsidized housing and food stamps etc. The other claims the children for the earned income credits. To deny that exists is also preposterous.
So now the socialist/damocrats wanted to destroy the actual family, and not be married between a woman and a man, they want two homosexuals to be able to be married.
So under this philosophy a man was married to a woman and then he realized he didn’t like sex with a woman anymore and “married” a man, then the man’s new husband could get earned income credit and child tax credits for the other man’s children.
Wow what great canned soup there is here.
The right thing to do is to return to the scriptures which this Country was founded on and use good ole common sense. And I agree with the one posting the welfare programs should never have been part of the IRs. But now if you read the HR3200, the damocrats want the IRS to provide information on tax returns to the damocrat bureacrats running the new ObamaUnHealthCare programs. Another move destroy the family, destory free enterprise. Everything should be for the common good of the most, pure socialism.
Jeff Day EA
Evansville, IN
Nice little hornet’s nest!
Getting to the argument in the original post, is the real reason alimony is deductible to encourage its payment, or is it because alimony is taxable to the recipient? I would argue that child support payments (which are not tax deductible) are far more socially beneficial than alimony, which could be seen as a sexual anachronism, depending on the context. So hanging an argument on the deductibility of alimony seems awfully weak.
That’s a good point, Vinny. Certainly, a lot of socially desirable behavior receives no favorable tax treatment. I used deductible alimony payments as an example, but there’s several behaviors relating to marriage and divorce that receive favorable tax treatment that won’t apply to gay couples.
Vinny, You are not only on the money but it brings up another thing about it, I didn’t originally think about. A person can not deduct alimony and the alimony is not taxable to the custodian parent unless the non-custodian parent is “FULLY” paid up on child support. I have had more than a couple times where a father tried to get the mother (custodial parent) to pay taxes on his payment which then would have adversely affected her earned income credit, she still didn’t have any taxable income. There are lots of times where the non-custodial parent claims alimony but the custodial parent still has no taxable income.
Just think if I am a custodial parent divorced from a woman and then “marry” a man and the mother is paying child support to help the family that the homosexual left the mother for and now they get “divorced” should the father now get alimony payments from the other?
The only reasonable conclusion to this quagmire is for the US to reverse it’s trend to destroying “the family” and support the family.
Kelly you said: We try to maximize the tax benefit and use it in a way that reduces overall income tax liability to maximize the dollars that exist to benefit the now-separated family.”
Can we really discuss this sometime? Most divorces that we tax preparers see in Southern Indiana proves what you wrote there is a blatant lie. Let’s pretend that parents have two children, almost alway’s the divorce decree says something like: they have joint custody and each parent claims one child on a tax return. One child? They have joint custody and each parent alternates years on a tax return. Three children, they each take a child each year and the third child each parent on alternating years.
Those lawyers and those judges should be forever barred from practising law when it comes to divorces and claiming children on tax returns etc. The amounts of monies and the amount of hell those parents go through the following years are so dramatic beyond belief. All because the lawyer wants it neat and simple for him/her the lawyer.
Jeff Day (aren’t you really glad I read this posting?)
Jeff, two thoughts:
a) You seem to be missing the fact that this post was not authored by Kelly.
b) Since when is the point of marriage to procreate? What is your basis for such a statement?
Jeff,
This was a guest post written by another attorney, Gideon Alper, and not me, as part of my series while I was on vacation.
For the record, I encourage all points of view on my site and I posted all guest submissions that were relatively on topic (a few submissions did not address the core question of “What would you say to Congress?”).
And for what it’s worth, I’m glad that you think you have me figured out when it comes to politics – neither my husband nor my father have! 😉
Kelly, maybe your husband and father are “too close” to tell. I realized as soon as I had made the posting, I goofed (yes I know I am sometimes human and can error, we “all fall short….”). Would be interesting to know why when I post various things on various blogs, virtually @ no time no one comes back and shows where I am in error?
At least Mike came back and challenged one small remark I made. As to that, it is my understanding the Scriptures tell us to “marry and multiply….”
The dialogue concerning marriage outside a man and woman was not started by me. I challenged someone’s argument, and then it stops? Why? Am I or am I not correct that if two homosexual men should legally be allowed to “Marry” then under the Equal Protection Clause of the 14th Amendment, athough I am already married my wife and I should be able to marry together another person. Why would someone else think their marriage is in jeopardy because my wife and I are also perverted?
It is not that unusual for two sisters that have never married to live together. It is not that unusual for two sisters whose husbands have died to then live together. Why shouldn’t they be able to marry?
When, where does this mockery of marriage stop?
In the completely seperate discussion concerning divorces and the children. I maintained that there are too many divorces, where the divorced couple, knowing no better and relying on the lawyers, have divorce decrees that are terrible. Writing a divorce decree allowing the parents to alternate on a tax return a child leads me to believe the only thing worse than the legal advice the lawyer gives is the reliance of his/her own ability to prepare their own tax returns. Why is it wrong to not have a discourse concerning that since someone else brought the subject up and I only responded?
Jeff Day EA
Evansville, IN (this is labor day, spending today’s @ wife’s sisters in Ft Worth. Next few days will be @ Dallas IRS forum) Think I can find anyone to argue with?
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