Married gays feel boxed out by IRS forms

This year, as they did last year, Marla and Phyllis Stevens are checking the "married filing jointly" box on their federal tax return.

For most married couples at tax time, this isn't unusual.

But as a lesbian couple, the Stevenses know their choice could run them afoul of the Internal Revenue Service (IRS), which does not acknowledge the marriages of same-sex couples across the country.

The women, who exchanged wedding vows in Canada in 2003 and split their time between homes in Iowa and Florida, insisted they're not out to pick a fight with Uncle Sam.

While few are likely to challenge the government in the way the Stevenses are, the marriages of same-sex couples in Massachusetts last year and across Canada in the past two years mean this tax season will find the largest number of gay and lesbian taxpayers ever fumbling over the status box on their federal returns.

Finances aside, many said they simply have a hard time lying about their marriage.

Gay-rights advocates, however, warned gay couples against inviting the wrath of the IRS by filing their taxes jointly as married people if the status means they will end up paying less in taxes to the government. Better, they say, to file as singles or to calculate their taxes a couple of ways — single and married filing separately, for example — and then submit the return that forces them to pay the most.

"Even if you're wrong in the end, you don't face the consequence of underpaying," said Jamie Pedersen, a Seattle attorney who sits on the board of Lambda Legal, a national gay-advocacy group. "You're not in the position of owing back taxes, interest and penalties. And it keeps you on the moral high ground, showing that you're willing to undertake the obligations that go along with marriage."

Taxation rally


Several gay-rights groups are planning a No Taxation With Discrimination rally from 5 to 6:30 p.m. Friday at the main post office in Seattle, Third Avenue and Union Street.

Lambda and other groups also are recommending gay couples who file returns as single taxpayers disclose to the IRS that they are married but are filing as singles in light of the federal Defense of Marriage Act, which recognizes marriage only between one man and one woman. The couples can do so either by noting it on their return with an asterisk next to the status box, including a cover letter, or submitting a disclosure form that many gay-rights groups are circulating.

It's a way for couples to protect themselves legally while silently protesting federal law, advocates said.

But whether the IRS will notice — or care — is a different matter. "For decades people have been sending various types of materials, regarding various issues, with their tax returns, which become part of that return," IRS spokeswoman Judy Monahan said. "Our main focus is processing the return. We take seriously the administration of the tax laws, but we do not make policy" on gay marriage.

People sign their tax returns under penalty of perjury, which is stated on the 1040 form.

Taxpayers usually draw attention for under-reporting or not reporting income, officials said. And while gender is not a question on the form, the IRS can access Social Security files, which contain gender information.

At the heart of this conflict is the Defense of Marriage Act (DOMA), passed by Congress and signed by President Clinton in 1996.

Buoyed by a state Supreme Court decision in Massachusetts that legalized same-sex marriages, San Francisco, Oregon's Multnomah County and other U.S. cities began issuing marriage licenses to gays and lesbians last spring. A California Supreme Court ruling later invalidated the San Francisco marriages.

In May last year, Massachusetts became the first to issue state-sanctioned marriage licenses to same-sex couples. There, gay couples can file joint state returns but must file as single for their federal taxes.

Some believe the Defense of Marriage Act clearly prevents gay couples from filing jointly.

Wayne Taylor, pastor of Calvary Fellowship Church in Mountlake Terrace, part of a coalition promoting traditional marriage, said there are plenty of rights and benefits already afforded gay couples.

"If they file their taxes within the law, if they live within the law, then they could have the same benefits that other people have. To try to force the government, which must represent all of us, to do the bidding of a minority over the wishes of the majority is wrong," he said.

But some gay couples think DOMA puts them in an impossible position: claiming to be single when they are in fact married.

Kevin Chestnut and his partner, Curtis Crawford, were married in Vancouver, B.C., in 2003, and are among 19 gay and lesbian couples suing the state of Washington for the right to marry or to have their marriages recognized. They are awaiting a decision from the state Supreme Court.

They are filing as singles but plan to include a disclosure form with their taxes informing the government they are married.

"There ought to be a 'married but filing single because you're forcing me to do it' box," said Chestnut of Seattle.

Last year, Heather and Barbara Rhoads-Weaver, who were married in Canada in August 2003, ended up paying 10 percent more in taxes by filing individually than they would have if they'd been allowed to file as a married couple.

With their taxes, they submitted an informational packet to the IRS that contained the joint return their accountant had prepared for them. They explained to the IRS they were married in Canada and hinted at a refund for the difference.

This year, with their employment circumstances different, filing singly is cheaper. But the Vashon Island couple plans to donate the difference to Equal Rights Washington, which is pushing for passage of gay civil-rights legislation in Olympia.

IRS officials couldn't say how many same-sex couples last year filed like the Stevenses, the lesbian couple who are checking the "married filing jointly" box.

The women — who got a refund they haven't cashed — have so far eluded detection. Marla Stevens said the couple doesn't plan to sign a return that does not acknowledge their union and is prepared to move to Canada if necessary.

"At some point we'll have to decide: Do we throw ourselves on the mercy of the country that issued us a marriage license in the first place?"

Lornet Turnbull: 206-464-2420 or lturnbull@seattletimes.com