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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