16 Pages Posted: 23 Apr 2014

Date Written: April 22, 2014

Abstract

This Essay proposes a new regulatory regime in response to the Supreme Court decision in U.S. v. Windsor, overturning Section Three of DOMA. By analogy to the check-the-box regulations, allowing a regulatory election in the face of incongruities in state law, this proposal would allow taxpayers who live in states that do not recognize same-sex marriage to elect to be treated as married for federal tax purposes. While the IRS's issuance of Rev. Rul. 2013-17 allows taxpayers who travel to a so-called "recognizing state" to have a same-sex marriage ceremony performed to be treated as married for tax purposes, there is still a requirement that those taxpayers travel to a state that has same-sex marriage before they can claim the federal tax benefits. This will be especially burdensome to low-income taxpayers, for whom the costs may be prohibitive. These same low-income taxpayers would be especially helped by the tax benefits available in certain instances to taxpayers filing jointly. The Essay considers potential objections to the proposal, and ultimately finds that the proposed regulatory regime, while hopefully only necessary for the short time (as more states enact same-sex marriage laws) will cure an inequity in the tax law.