Equality Florida’s executive director Nadine Smith has a brilliant new campaign for any of you married gays who have yet to file your taxes: If you adhere to the Defense of Marriage Act and mark “single” on your federal tax forms, you are lying to the U.S. government. “It would be both dishonest and deeply humiliating to now disavow each other or our marriage and declare ourselves single on our tax form,” says Smith.” Enter EQFL’s “Refuse To Lie” campaign, which calls on married ‘mos to take advantage of Obama’s unwillingness to defend DOMA’s Section 3 (the part that bars the feds from recognizing legal state gay marriages) and court rulings that have also struck it down. Of course, participating in the “Refuse to Lie” effort might have you entering into a murky legal area, or worse: getting you red-flagged by the IRS and treated to an audit, which is the worse punishment possible, AMIRIGHT?
The “Refuse to Lie” Web site warns same-sex couples of the risks of filing jointly, and explains different options to both adhere to the law while expressing that they disagree with it. One way to do that would be to put an asterisk by the “single” box, and then indicate at the bottom of the tax form that you are “only single under DOMA.” Another option, the site says, is to attach a note with a similar message.
The campaign also explains on its Web site how to file a joint return while avoiding penalties. In the first method, each partner would file their own single return and include an attachment stating that they’re married, and then file an amended return jointly. “Once the I.R.S. rejects the amended return, or if six months passes and they do nothing, the taxpayers who file an amended return have the right to file suit in Federal District Court claiming the refund,” the activists’ site said, adding that this option would avoid penalties because your original return would be filed according to the law.
Another method suggests filing two returns: one filed jointly (and showing the tax due on the joint return) and one filed as a single taxpayer (showing the tax due on that return). Pay whatever is due on the single return — which means you will not have underpaid — and then ask the I.R.S. which return to accept. But if the I.R.S. accepts the joint return and issues you a refund, “there is no way to know what will happen if you are later audited,” the site said.
And for anyone who wants to be cautious while also not losing out on the tax benefits of being a married couple, you can file even more paperwork.
But there’s another way to preserve your right to collect any refunds due to you if the law is eventually struck down. Patricia Cain, a professor at Santa Clara Law and an expert on sexuality and federal tax law, said that couples who would benefit from a joint filing — that is, couples who would pay less in taxes or receive refunds — can file a protective claim using I.R.S. Form 843. (File separate returns in accordance with the law, then attach the form to an amended joint return). “If you state on Form 843 that your claim is based on the unconstitutionality of DOMA, which is an issue pending in current litigation, it is more likely that the I.R.S. will do nothing until the issue is finally determined,” she added. “And if DOMA is struck down as unconstitutional, you should be entitled to the refund on the amended return.”