8


GAY SAN DIEGO


July 30-August 12, 2010


COMMENTARY


To be married filing jointly, or not? That is the question.


The memorandum does not men- tion the Defense of Marriage Act (DOMA), and some have criti- cized it for that. However, this is a huge step.


MICHELE SACKS


LOWENSTEIN


LEGALLY SPEAKING


H


as the IRS changed its posi- tion on registered domestic partners not being allowed


to file joint federal tax returns? A recent private letter ruling and a recent memorandum from the Office of Chief Counsel at the IRS suggests that it has. The memo- randum recognizes that since 2007 California registered domes- tic partners (RDPs) have been required to treat their earned income as community property for the purposes of filing state in- come tax returns (the execution of the equivalent of a prenuptial agreement can change this requirement). After reviewing the law in California, the memo- randum states: “Consequently, for tax years beginning after


December 31, 2006, a California registered domestic partner must report one-half of the commu- nity income, whether received in the form of compensation for personal services or income from property, on his or her federal in- come tax return.” The memoran- dum also states that people who previously filed separate returns for tax years 2007, 2008 and 2009 are permitted, but not required, to amend them. The memorandum does not


mention the Defense of Marriage Act (DOMA), and some have criticized it for that. However, this is a huge step. What does this mean to RDPs


who wish to dissolve their part- nerships? The Internal Revenue Code prohibits these memoranda from being used or cited as prec- edent, though they can be helpful in understanding the position the IRS might take in the future. It’s not clear that dissolving RDPs are finally able to engage in the same pre-dissolution tax planning as their divorcing married hetero- sexual counterparts. Tax burden minimization has always been a consideration for a divorcing couple; in fact many will delay the entry of the divorce judgment, and file joint federal and state income taxes for one more year. Until 2007, California RDPs did not have the option of filing joint returns. But since 2007 RDPs are required to treat their earned income as community property for the purposes of filing State income tax returns. Also, a new community asset may have been created:


tax


refund(s). RDPs (dissolving or not) ought to consult their ac- countants about filing amended federal returns. The Wall Street Journal looked at an RDP where one partner earned $300,000 in a year and the other partner earned nothing. The ability to file a joint federal income tax return would have resulted in tax savings of over $15,000, and even more sizable savings if they were to file amended returns for previous


years. Whether the couple is dis- solving their partnership or not, they have to consider filing joint (amended) federal tax returns. On a related issue, in May of


this year the New York Commis- sioner of Taxation and Finance issued an advisory opinion that same-sex couples residing in New York who have been married in other states are not eligible to file joint state tax returns. The commissioner rec- ognized the governor’s directive that New York state agencies must afford the same recogni- tion to gay couples married in other states as to “any other legally performed union.” How- ever, in his opinion DOMA was overriding, and “since marriage to a same-sex partner is not a marriage for federal income tax purposes, it is not a marriage for New York State personal income tax purposes.” So, as usual, we have lots of


confusion. Same sex couples living in New York who were married in another state are not allowed to file joint New York state income tax returns. California RDPs are required to file joint California state income tax returns and may now may be eligible to file joint federal tax returns. In the first instance, New York has relied on federal law (DOMA) and in the second instance the IRS appears to be relying on state law. Time to pick up the phone


and call the accountant. View the private letter ruling at: www. irs.gov/pub/irs-wd/1021048.pdf and the memorandum at: www. irs.gov/pub/irs-wd/1021050. pdf.☭


—Michele Sacks Lowen-


stein is a Certified Family Law specialist in San Diego. She has been practicing family law for 28 years and is the co-chair of the Family Law Section of the San Diego County Bar Association and a member of the Greater San Diego Business Association (GSDBA).


THEJOURNEY ROBERT HIRSCH


There aren’t many things in


our multi-hued community that represent a true dichotomy (the separation of something into two distinct categories) quite like a person’s relationship status. Basically everyone is either in a relationship—which may include serious dating—or is single. This distinction has taken on an even greater significance with the quest for legal marriage as our foremost political issue and endeavor during the past decade. Even the rings, now worn almost universally on the left hand, lend legitimacy to the contrast. This dichotomy is a main-


stay of my work. The two most


www.gay-sd.com Is the grass always greener?


relationship is the gold standard. Yet, for some reason, an unhappy or unhealthy relationship is still viewed as more desirable than being single. A number of years ago I ran


into a colleague as I was leaving my office on a Friday evening. When I asked her what she was


Contrary to societal images there are a fair number of peo- ple who choose to be and enjoy being single.


common issues I help people deal with in my practice are the solitude of being single and the anguish of an unhappy, strug- gling primary relationship. So, the question that begs to


be asked is, “Is the grass actu- ally greener?” Now I know this sounds a little like something Carrie Bradshaw would write— and if you don’t know who she is, please deduct 10 gay points—but it is also about our community and ourselves. The overall community


sentiment seems to be that a (reasonably) healthy and happy


doing that evening, she respond- ed, “My partner and I had plans with another couple, but they just cancelled so we’re going to din- ner and a movie.” Being recently single at the time, I was acutely aware of how much a relationship offered a built-in social life. Conversely, one of the truisms


about being single is the energy and effort that goes into mak- ing and having plans on a fairly constant basis. Single people feel obligated to purchase more hair products and spend extra hours


see Journey, pg 16


GSD nabs two Nicky nominations


With the ink still drying on


issue number four, Gay San Diego has already been nominated for two Nicky Awards. Known as the “Gay Academy Awards of San Diego,” the Nicky Awards is one of the oldest LGBT community showcases in the country. The Nicky’s were founded


in 1975 and continue to honor outstanding achievement in arts, social service, entertainment, nightlife, business, dining, activ- ism, philanthropy, volunteerism and individual accomplishment in San Diego’s thriving LGBT com- munity. All the proceeds benefit the Milk/Ramirez Scholarship Fund, The Imperial Court and The Center. Gay San Diego is nominated


for both “Outstanding On-line LGBT Media” and “Outstanding Publication,” going up against its sister publication, San Diego Uptown News, also nominated for “Outstanding Publication.” The awards will be held


Sunday, Aug. 29 in The Center’s auditorium, 3909 Centre Street in Hillcrest. Tickets are $50 for gen- eral admission and $75 for VIP gold seating. The public can vote for nominees online and at vari-


ous Nicky Awards voting events on Aug. 13 and 14. For more information, call (619) 940-5171or visit nickyawards.com.☭ —Jessica Hudgins


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