Big (Gay) Love: Has the IRS Legalized Polygamy?

North Carolina Law Review Addendum, 2014, Forthcoming

U. of Pittsburgh Legal Studies Research Paper No. 2014-06

35 Pages Posted: 6 Feb 2014 Last revised: 27 May 2014

Anthony C. Infanti

University of Pittsburgh - School of Law

Multiple version iconThere are 2 versions of this paper

Date Written: February 6, 2014

Abstract

Within days in December, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which struck down section three of the federal Defense of Marriage Act (DOMA).

In exploring that possibility, this essay continues my work analyzing the shortcomings of the IRS’s implementation of the Windsor decision. The Secretary of the Treasury promised that IRS guidance would provide same-sex couples with “certainty and clear, coherent tax-filing guidance.” To the contrary, I have explained that the IRS’s guidance provides no more than the same veneer of clarity that DOMA did, because it leaves important questions unanswered, lays traps for the unwary, creates inequities, and entails unfortunate (and, hopefully, unintended) consequences. In this essay, I extend that analysis by explaining how ambiguity in the IRS’s guidance may also have unintentionally opened the door to recognizing plural marriage for federal tax purposes.

Keywords: gay, lesbian, same-sex, marriage, plural marriage, polygamy, bigamy, tax, skidmore, deference, revenue ruling, administrative law, administrative procedures act, apa

JEL Classification: K34, K39, K49

Suggested Citation

Infanti, Anthony C., Big (Gay) Love: Has the IRS Legalized Polygamy? (February 6, 2014). North Carolina Law Review Addendum, 2014, Forthcoming; U. of Pittsburgh Legal Studies Research Paper No. 2014-06. Available at SSRN: https://ssrn.com/abstract=2391395

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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