Last year, while Californians were in the midst of a heated debate on the merits of Prop 8, Charles Merrill took activism into his own hands: he filed papers in Tax Court challenging the Defense of Marriage Act (DOMA). On July 13, the Tax Court ruled that Merrill was not entitled to relief. (Merrill v. Commissioner, T.C. Memo 2009-166).

Merrill is legally married in the state of California to Kevin Boyle, one of nearly 18,000 same-sex unions in state which remained valid after Prop 8 was upheld by courts earlier this year. His court challenge, however, had nothing to do with his marriage.

The question, according to the court was “whether petitioner, who was unmarried but in a committed relationship with another man during the years at issue, is entitled to married filing joint status.” The court found that he was not.

So it feels like the law is settled. Or maybe not.

This case wasn’t really about DOMA even though it was painted as a DOMA challenge. Merrill did not get married until 2008. His case, however, focused on the tax years 2004 and 2005, when he was single. Merrill believes that he should have been able to file as married while a resident of North Carolina since North Carolina does not recognize same sex marriages; the IRS said that he could not because he was not married. Additionally, Merrill believes that he should have been able to file as married when he moved to California; again, the IRS said that he could not because he was not yet married. The court agreed on both counts. In other words, Merrill wasn’t married, so the court found that he couldn’t file as married. Not groundbreaking stuff.

It wasn’t surprising, then, that the court refused to address the bigger issue of the constitutionality of DOMA, claiming that it was not relevant to Merrill’s case. Had they addressed that piece, that would have been interesting. The court would have been required to address DOMA had Merrill filed a federal joint return for 2008 (for which he was legally married). The IRS does not follow state law for recognizing same-sex marriages despite the fact that state law determines marital status for federal filing purposes, including the recognition of common law marriages and legal separations. However, DOMA, which defined marriage as “a legal union between one man and one woman as husband and wife” requires that the IRS not recognize same sex marriages.

In other words, you want to talk DOMA? File a bona fide DOMA challenge.

The rest of Merrill’s case is likewise a bit puzzling. Merrill had actually not filed with the IRS for either of the years in question (2004 and 2005). He has refused to file or pay federal taxes for the past several years as a protest. While I note that constitutional law isn’t my forte, I might have approached this case a little differently. It would make sense to me that, rather than file a case protesting filing status that Merrill never actually claimed (meaning that he never filed as married), a better route from a procedural standpoint would have been to file joint tax returns with his partner and then make the claim if opposed by the Service (which it certainly would have been). Would he have had a different result this way? Probably not. But I think it would have been a better argument and made a bigger statement.

This case may get talked up a bit at cocktail parties (on both sides) but for tax purposes, in the end, it really didn’t offer anything new.

(Hat Tip: Tax Prof Blog)

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Kelly Erb is a tax attorney and tax writer.


  1. Agree it’s a total non-case. The suit filed by Massachusetts last week, although not tax-related, has a bit more meat to it but only challenges limiting federal rights and benefits to married couples. But if it ever made it to the Supremes, my bet is that it would be tossed out on the basis that the state lacks standing to sue (how is the state injured by that provision of DOMA?)

    I think the GLAD and California suits may have a better prospect of winning on their merits. The GLAD case involves Massachusetts gay married couples actually being denied federal benefits (including income tax benefits), while the California case challenges DOMA’s incongruity with the full faith and credit clause.

  2. It seems the Court did not even consider Merrill’s marital status in making its decision. Because the IRS prepared Merrill’s return, Merrill is required to file a subsequent return claiming the MFJ status, which he did not do. “Accordingly, he is not eligible for the married filing joint status with respect to these years.”

    • Chris, that’s exactly what perplexed me. If you want to be aggressive about the position, why not do so at full speed?

  3. Is this the cousin of the Merrill who gave us Merrill v. Fahs, 324 U.S. 308 (1945)? If so, they sure like to litigate marriage issues…..

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