If the Defense of Marriage Act didn’t exist, same-sex married couples would be considered married for federal tax purposes. But what about couples in civil unions or domestic partnerships? And what about opposite-sex couples in such relationships?

The IRS seems to think opposite-sex civil unions and RDPs do rise to the level of marriage. Last August, the IRS issued this letter ruling that says opposite-sex couples in civil unions in Illinois are considered married for federal tax purposes.

By implication, same-sex couples in civil unions or RDPs would also be considered married for federal tax purposes if not for DOMA. I have even stated such on this blog and in various presentations I have given.

But Professor Pat Cain at the Same Sex Tax Law Blog got me thinking about this again. Back in February, she posted her disagreement with the IRS:

I believe the IRS has erroneously concluded that opposite-sex civil union partners are married for federal tax purposes because they have been granted spousal rights and responsibilities at the state level. I believe the IRS is relying on its earlier ruling that if you are common law married in a state that recognizes common law marriage, then you are married for federal tax purposes. But the situations are not really similar. If you are common law married you ARE married. If you are merely given the rights and responsibilities of married persons, you are NOT married.

The good news is that opposite-sex couples in RDPs or civil unions in several states have been, according to Professor Cain, asking about their marital status for federal taxes. This means that — maybe — the IRS will issue clearer guidance sooner rather than later.

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