Taxing Polygamy

Abstract

Overwhelmingly, Americans find polygamy distasteful, if not immoral. For some, such distaste seems almost visceral, a reaction to a barbaric and backward practice. Others point to concrete harms they claim polygamy causes. For example, polygamy’s critics frequently highlight the sexual exploitation of underage girls and the general inequality and abuse women face in polygamous communities to underscore polygamy’s immorality. But critics do not end their list of the polygamy’s evils with the abuse of women and girls. As they dig deeper into the litany of evils perpetrated by polygamists, critics almost invariably mention a problem far less intuitive: tax evasion.

Legal scholarship on polygamy has largely focused on two questions: whether polygamy should be decriminalized and whether states should recognize polygamous marriage. Scholars have ignored questions of whether other generally-applicable laws could apply in their current form if a state legalized polygamous marriages. But while the law must address whether to decriminalize, or even sanction, polygamous marriage and how to regulate such marriages once sanctioned, answering these questions only begins to address the complexities that would derive from state-recognized polygamy. To the extent polygamy leaves the shadows it currently inhabits, participants will need to negotiate legal regimes other than those dealing expressly with polygamy.

For example, polygamists, like most Americans, must earn income. Furthermore, like most Americans, they will need to calculate and pay taxes on that income. The tax law, however, does not anticipate polygamy and has no mechanism for dealing with polygamous taxpayers. This Article represents the first attempt to address polygamous families and the federal income tax. Though changing the focus of the discussion from whether polygamy oppresses women to how polygamous families can file their taxes seems a descent from the sublime to the banal, paying federal income tax represents one of the few experiences common to nearly all Americans, irrespective of marital status. The tax system, then, represents one legal regime polygamists would need to navigate.

This Article examines how the tax system could appropriately tax polygamous spouses. After describing several potential alterations to the joint filing system, it ultimately concludes that polygamy undermines any remaining rationale for joint filing. A system of individual filing, with certain alterations to recognize the flow of property and services in altruistic relationships, would provide a better tax system that would be fair to taxpayers whether the taxpayers were unmarried, in a dyadic marriage, or in a polygamous marriage.

Keywords: federal income tax, polygamy, joint filing, economic unit, marriage penalty, marriage bonus, same-sex marriage, domestic partnership, civil union, income-shifting

JEL Classification: K00, K34