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The Moonscape of Tax Equality: Windsor and Beyond

Northwestern University Law Review Colloquy, 2013, Forthcoming

U. of Pittsburgh Legal Studies Research Paper No. 2013-22

17 Pages Posted: 20 Jul 2013 Last revised: 11 Sep 2013

Anthony C. Infanti

University of Pittsburgh - School of Law

Date Written: July 1, 2013

Abstract

This essay takes a critical look at the tax fallout from the U.S. Supreme Court’s decision in United States v. Windsor, which declared section three of the federal Defense of Marriage Act (DOMA) unconstitutional. The essay is important because, while other federal laws will apply to some same-sex couples some of the time, the federal tax laws are a concern for all same-sex couples all of the time. The essay is timely because it addresses the recently issued IRS guidance regarding the tax treatment of same-sex couples.

In this essay, I first describe the path that led to the decision in Windsor. Then, I turn to describing the ways in which the post-Windsor tax terrain may actually be worse for same-sex couples than the bleak tax landscape that they faced before that decision. Under DOMA, same-sex couples already faced a debilitating level of uncertainty in determining how the federal tax laws applied to their relationships. Post-Windsor, same-sex couples will see this uncertainty multiply — even after receiving guidance from the IRS on the implementation of the Windsor decision in the federal tax context. They will have to grapple not only with lingering questions surrounding the federal tax treatment of relationships that are not recognized, but also with new questions regarding whether and how their relationships will be recognized for federal tax purposes. Moreover, it seems that dispatching discrimination designed to erode the progress of same-sex couples toward formal equality has served only to entrench the privileged status of marriage in our federal tax laws rather than fostering the recognition of a broader array of human relationships.

Keywords: lesbian, gay, bisexual, LGBT, gay marriage, same-sex marriage, civil union, domestic partnership, tax, revenue ruling 2013-17, equality, equity, gender, class, sexual orientation

JEL Classification: K34

Suggested Citation

Infanti, Anthony C., The Moonscape of Tax Equality: Windsor and Beyond (July 1, 2013). Northwestern University Law Review Colloquy, 2013, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2013-22. Available at SSRN: https://ssrn.com/abstract=2295597

Anthony C. Infanti (Contact Author)

University of Pittsburgh - School of Law ( email )

3900 Forbes Ave.
Pittsburgh, PA 15260
United States
412-648-1244 (Phone)
412-648-2648 (Fax)

HOME PAGE: http://www.law.pitt.edu/people/anthony-c-infanti

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