May 06, 2005  |  By: LOU CHIBBARO JR.  | COMMENTS     

The D.C. Office of Tax & Revenue issued a ruling Tuesday, May 3, declaring that same-sex couples married in Massachusetts cannot file joint tax returns in the District because the city’s tax law requires local tax policy to conform to rules set by the federal Internal Revenue Service.

The ruling, written by two unidentified attorneys with the tax office, overturns an advisory opinion issued April 14 by D.C. Attorney General Robert Spagnoletti. The Spagnoletti opinion said same-sex married spouses could file a joint D.C. tax return “if they hold a good-faith belief that they are a validly married couple under the laws of Massachusetts.”

At the time he issued his opinion, Spagnoletti said he would defer to the Office of Tax & Revenue for a final decision on the matter.

The tax office ruling says the D.C. Income & Franchise Tax Conformity Act of 1983 bars married couples from filing a joint D.C. tax return unless they also file a joint federal return. The act was passed by the D.C. Council and signed by then Mayor Marion Barry.

The tax office ruling notes that the federal Defense of Marriage Act of 1996 defines marriage under federal law as a union only between a man and a woman. The ruling notes that the 1996 act, known as DOMA, ended a past federal policy of leaving it up to the states to determine how to define a marriage for purposes of filing tax returns.

“District income tax law provides for automatic federal conformity,” the tax office ruling states. “Thus, under automatic tax conformity, whenever Congress amends a provision of the Internal Revenue Code that is cited in a District income tax law, the District law is automatically amended to incorporate the revised provision of the IRC unless the [D.C.] Council legislates a rejection of that provision.”

The ruling adds, “Accordingly, it is concluded that because a married, same-sex couple may not file jointly for federal tax purposes, the couple cannot file a joint or combined-separate income tax return under the District’s income tax laws.”

‘We have not given up’
Spagnoletti said he issued his initial advisory opinion in response to an inquiry about joint tax filings by Ed Horvath, 54, and Richard Neidich, 64, a gay couple who married in Massachusetts last June.

Horvath said this week that he accepts the ruling by the tax office and that he and Neidich have no plans to challenge the ruling in court.

“I’m disappointed but I’d rather see this now than have another opinion overturned a few years later,” he said. “This means that this is not the approach to take. But we have not given up.”

Horvath said he and Neidich will continue to urge Williams to release a separate opinion that Spagnoletti prepared one year ago on the question of whether existing D.C. law allows or requires the city to recognize same-sex marriages issued in Massachusetts, other states, or other countries like Canada.

In his weekly news briefing on Wednesday, Williams said he has no immediate plans to release the Spagnoletti opinion. He pointed to his own support for same-sex marriage but said his reluctance to release the opinion stems from his concern about congressional interference.

“I am leery of triggering retribution, some kind of negative action by the federal government that would reverse the gains that we’ve already made,” he said, referring to the city’s domestic partners law.

“I think the community understands and respects that general position,” he said. “We’re looking at where we are in terms of consulting with our lawyers and moving forward. And I am aware that you want to see Robert’s opinion, and in general I want to provide information to you. So I will get back to you at some point in the future on that.”

Sources familiar with the mayor’s office said it would be later rather than sooner before the mayor releases the Spagnoletti opinion.

Dodging a bullet?
Meanwhile, the ruling by the tax office “may have helped the District dodge a bullet in our FY 2006 appropriations bill on the Hill,” said Rick Rosendall, vice president of the Gay & Lesbian Activists Alliance.

GLAA has urged Williams and the D.C. Council to hold off on recognizing same-sex marriages out of concern that Congress would step in to reverse such recognition and might repeal existing D.C. laws pertaining to rights for domestic partners. In the past, Congress has imposed restrictions on D.C. by incorporating the restrictions into the city’s annual appropriations bill.

“What is certain is that for the District to have accepted those joint ...