Nebraska Tax Guidance for Same-Sex Married Couples

At long last, we have guidance from Nebraska relating to same-sex marriage.

As I expected, the Nebraska Department of Revenue says couples in same-sex marriages CANNOT file their Nebraska tax return as married.

Nebraska’s revenue statutes say taxpayers must use the same filing status on their Nebraska return as they used on their federal return. But Nebraska has a constitutional amendment that prohibits same-sex marriage. The constitution trumps the revenue statute.

Per Revenue Ruling 22-13-1:

Pursuant to Neb. Const. art. I, § 29, individuals who entered into a same-sex marriage in a jurisdiction that recognizes same-sex marriages cannot file a Nebraska individual income tax return using either a married, filing jointly or married, filing separately filing status. The following rules apply to same-sex individuals who are considered married for federal tax purposes:

  • Each individual must file a separate Nebraska income tax return using Form 1040N;

  • Each individual must use a single or, if qualified, head of household filing status; and

  • Each individual must use the tax rates corresponding to the single or head of household filing status, whichever applies.

Further guidance will be coming regarding any recalculations that might need to be done on the Nebraska return to account for differences between married-person tax law and umarried-person tax law.

Here’s a link to a pdf of Revenue Ruling 22-13-1.

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5 Responses to “Nebraska Tax Guidance for Same-Sex Married Couples”

  1. Brian Huber November 9, 2013 at 2:02 pm #

    So, we tax professionals are still confronted with instances of state tax returns differing from federal returns of the same taxpayers. Because of the disparity this causes for same-sex couples moving from the state where they legally married to a state that doesn’t allow same-sex marriages, I’m thinking someone will challenge this issue on 14th amendment grounds. Nebraska could still recognize the validity of same-sex marriages legally conducted in other jurisdictions even though the state does not permit origination of those unions within its borders.

    • Jason Dinesen November 9, 2013 at 5:48 pm #

      Yep, still differences between federal and state in states like Nebraska. And you are right: this is almost assuredly going to the Supreme Court again in the years to come.

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