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Utah tax officials allow joint filing for married same-sex couples

Published January 16, 2014 3:24 pm

Change • Utah reverses its policy after the judge ruling that allowed same-sex marriages.
This is an archived article that was published on sltrib.com in 2014, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

Utah's Tax Commission did an about-face Thursday, deciding legally married same-sex couples in the state can file joint state income-tax returns.

That policy is 180 degrees from the one announced just three months ago.

Much has changed in that time. U.S. District Judge Robert Shelby on Dec. 20 struck down Utah's sweeping ban on same-sex marriage and any "marriage-like" privileges for gay and lesbian couples. More than 1,300 marriage licenses were issued to same-sex couples in the state before the U.S. Supreme Court on Jan. 6 stayed the ruling pending appeal.

"Judge Shelby's ruling played a big role in this" change of tax policy, commission spokesman Charlie Roberts said.

But the new tax policy goes beyond the same-sex couples married in Utah during the 17-day window between court rulings. The state also will allow joint filing by gay and lesbian couples legally married outside the state while residing in Utah.

That is in accord with an Internal Revenue Service policy first announced in August. The IRS said it would allow joint filing of federal tax returns by same-sex couples legally married anywhere — regardless of residence — based on the U.S. Supreme Court ruling overturning the federal Defense of Marriage Act.

It is estimated that there are more than 115,000 same-sex couples married legally in the United States.

Peggy Tomsic, one of the attorneys in the Kitchen v. Herbert case at the center of Shelby's ruling in Utah, applauded the tax-commission decision.

"These couples have willingly assumed the mutual responsibilities and obligations of marriage, and they deserve the same certainty, stability and protection as other married couples. We look forward to the day when the state of Utah treats same-sex couples and their families equally in all respects," she said in a statement.

Last week, the governor's office announced the state will not officially recognize the validity of same-sex marriages that occurred before the Supreme Court's Jan. 6 stay.

While tax commissioners are appointed by the governor and confirmed by the Senate, the commission is an independent agency under Utah's Constitution.

Thursday's decision marked the latest in a series of sometimes contradictory policy stances by the commission regarding married same-sex taxpayers.

Soon after the IRS policy change in August, Utah State Tax Commission Chairman Bruce Johnson indicated that the Beehive State likely would follow the federal agency's lead in accepting joint tax filings because the state's income tax is so intertwined with the federal tax system. To adopt a contrary policy, Johnson said, would be difficult for taxpayers and for tax collectors.

Despite that initial indication, the Tax Commission five weeks later issued a decision saying it would not allow joint filing by same sex couples. Johnson acknowledged at the time that enforcement would be problematic as there is nothing on tax forms to designate the gender of married tax filers.

The commission chairman also acknowledged that the unusual way the decision was made — without any public discussion or vote among the four tax commissioners — probably wasn't ideal. "It would be entirely appropriate if somebody wanted to ask us to address this in an open meeting," he said at the time.

Thursday's decision to allow joint filing by married same-sex couples was again made with no public debate or vote by the Tax Commission. A meeting to address the issue had been scheduled last week, but that was cancelled.

"They just didn't have all the information," Roberts said.

He confirmed there was no commission vote on the policy, saying the decision involved the agency's executive director, the attorney general's office and Johnson, the commission chairman.

Johnson did not return a phone message Thursday.

State Sen. Jim Dabakis, D-Salt Lake City, is one of the hundreds of members of Utah's LGBT (lesbian, gay, bisexual and transgender) community who wed as soon as Shelby's decision struck down Utah's same-sex marriage ban. He hailed the new tax policy as the right and sensible thing to do.

Pointing to the onerous requirement under the old policy of forcing same-sex couples to prepare separate returns for state and federal taxes using some complex and hypothetical calculations, he said, "it's good to see that has joined the dust bin of dumb history."

State Sen. Curt Bramble, a CPA and member of the Senate Revenue and Taxation Committee, said he was "not surprised" by Thursday's decision to allow joint filing.

"It surprised me when they came out with the first ruling" against joint filing, Bramble said. "As a [tax] practitioner, I didn't think they could do that because we piggyback on the federal system."

He did question the process for making the policy. "Usually, when they issue an advisory opinion or a regulation — a tax commission rule — they announce the meeting and they have a discussion" in a public meeting.

The Tax Commission has declined to provide The Tribune requested correspondence between it and the governor's legal counsel and attorney general's office prior to the initial joint filing decision, saying those records are protected by attorney-client privilege. The newspaper is appealing the denial.