Tax Day spotlights inequality for gay couples

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Same-sex couples are married by the Oakland County Clerk in Pontiac, Mich

The question pops up on the online tax filing site: Has your relationship situation changed since you filed last year? Did you marry?

The answer is “yes.” You and your partner left Wisconsin to marry in Minneapolis. Or maybe Iowa, Illinois or one of the 14 other states that, along with the District of Columbia, have legalized same-sex marriage.

You answer “yes” for the federal return, but Wisconsin requires you to say “no” for the state return.

Tax time puts a spotlight on the inequalities and bias same-sex couples face in the state less than a year after the U.S. Supreme Court overturned the provision in the Defense of Marriage Act barring the federal government from recognizing their marriages.

Since that ruling last June, several federal courts have deemed state prohibitions on same-sex marriage unconstitutional and the number of states where gay couples can marry has climbed to 17.

In Wisconsin, the American Civil Liberties Union of Wisconsin and the national organization, have filed a federal challenge to the 2006 voter-approved constitutional amendment defining marriage as the union of a man and a woman and also to overturn an old statute making it a crime for gays to go out of state to marry.

The ACLU, most recently, filed a motion for summary judgment, asking the federal court to:

• Declare the amendment in violation of the Due Process and Equal Protection guarantees in the U.S. Constitution.

• Order the state from enforcing the amendment and also the statute providing penalties for gay couples who marry in other jurisdictions.

• Require the state to pay attorneys fees and court costs.

The court’s response to the motion is expected in mid-May.

Meanwhile, the defendants, led by Gov. Scott Walker and Attorney General J.B. Van Hollen, have filed a motion asking the court to dismiss the case. The court’s response is expected late this month.

A bench trial — if the case reaches that stage — is tentatively set to begin on Aug. 25 in Madison and to last about five days. The court’s timeline has the discovery period closing on July 21.

But for now, married gay couples in the state find they must file as individuals in their state returns but can choose the filing status of married filing jointly or married filing separately on their federal tax returns.

The IRS, after reviewing the U.S. Supreme Court ruling, said, “Same-sex couples will be treated as married for all federal tax purposes, including income and gift and estate taxes. The ruling applies to all federal tax provisions where marriage is a factor, including filing status, claiming personal and dependency exemptions, taking the standard deduction, employee benefits, contributing to an IRA and claiming the earned income tax credit or child tax credit.”

Per guidance from the Wisconsin Department of Revenue: “Legally married same-sex couples must file as individuals for all Wisconsin state tax purposes. Same-sex individuals who file a joint federal income tax return must complete a new Wisconsin form, Schedule S, Allocation of Income to be Reported by Same-Sex Couples Filing a Joint Federal Return.”

The new form shows the income on the federal return that is allocable to each individual and determines the federal adjusted gross income to be used for Wisconsin tax purposes.

The Supreme Court decision, as it applies to taxes, “made life simpler for some of those people and more complicated for some others,” said Mark Luscombe, the principal federal tax analyst for CCH.

On the Web …

The Human Rights Campaign offers information for same-sex couples at

Photo: Same-sex couples are married by the Oakland County Clerk in Pontiac, Mich., on March 22. A federal judge struck down Michigan's ban on gay marriage. The same day several hundred couples married, an appeals court issued a stay in the case. Married gay couples in non-equality states can face complicated tax issues. — Photo: AP/Paul Sancya