La. Department of Revenue: Gay couples must file separately

Law bans recognizing unions not of ‘one man and one woman’

Because Louisiana bans same-sex marriage, gay married couples who file jointly on their federal tax returns will have to file as single on their state returns, despite state law forbidding them to do so, according to a ruling issued by the state late Friday.

The ruling, signed by state Department of Revenue Secretary Tim Barfield, said that Louisiana’s Constitution defines marriage as consisting “only of the union of one man and one woman.” The constitution also forbids courts and officials from recognizing “any marriage contracted in any other jurisdiction which is not the union of one man and one woman.”

“Louisiana’s Secretary of Revenue is bound to support and uphold the Constitution and laws of the state Louisiana, and any recognition of a same-sex filing status in Louisiana as promulgated in IRS Revenue Ruling 2013-17 would be a clear violation of Louisiana’s Constitution,” Barfield wrote.

LSU Paul M. Hebert Law Center Professor Andrea Carroll, a family law expert, said Barfield’s rulings put same-sex marriage partners in the position of having to violate the state law that specifically requires taxpayers to use the same status and claim the same exemptions on state tax returns as they do on federal tax returns. “It’s in direct conflict,” she said.

Carroll predicted a lawsuit would soon be filed challenging the state’s law and Barfield’s decision.

The U.S. Supreme Court in June ruled in the United States v. Windsor case that the federal Defense of Marriage Act, called DOMA, violated the U.S. Constitution. But the high court did not consider whether it is constitutional for states, like Louisiana, to prohibit same-sex couples from getting married, she said.

“It’s the next logical step,” Carroll said. Barfield’s rule “is setting the stage for the court to answer that question.”

“It is interesting how the Jindal administration ‘conveniently’ runs to the Louisiana Constitution what they can use to pander to bigotry and intolerance, at the same time ignoring the Louisiana Constitution when it comes to vouchers, and fiscal responsibility,” said Joe Traigle, a Baton Rouge businessman who is a former state revenue secretary.

The IRS last week released Revenue Ruling 2013-72 that allows same-sex married couples to use “married filing jointly” status on their federal tax returns, the same as heterosexual couples, even in states that do not recognize gay marriage. For most middle-income taxpayers, using the joint status, rather than single status, translates to owing less taxes.

The IRS ruling specifically allows same-sex couples legally married in states that allow it to move to any of 35 states that forbid gay marriage, such as Louisiana, without worry their federal filing status would change.

Friday’s state Revenue Department rule, which had not yet been officially posted on the Revenue Information Bulletin by Friday night, stated that same-sex married couples with “married filing jointly” on federal tax returns, “may not” do so on their Louisiana return. Instead, the couple must file separate Louisiana returns as single, head of household or qualifying widow, as applicable.

Because Barfield’s rule was released so late, Robert Travis Scott, head of the Public Affairs Research Council of Louisiana, called PAR, said he didn’t have time to closely study it. But his initial reaction was that the state Department of Revenue didn’t formally decouple the state and federal forms. “We definitely don’t want to see that happen. That would impact all taxpayers,” Scott said.

Tax deductions and credits have a lot of subtleties. Years ago, Louisiana lawmakers linked the state and federal income tax processes to save taxpayers the hassle of calculating different income levels and different tax liabilities based on different rules and different forms, he said.

Mechanically, a taxpayer acquires the numbers to insert in the state form from filling out the federal form. The state Revenue Department ruling likely will require gay couples filing as married on their federal forms, to then fill out another federal form as a single taxpayer to come up with the entries for the state income tax return.

“There’s a lot that needs to be clarified. We’re going to be looking at this closely,” Scott said.