The Assumption of Selfishness in the Internal Revenue Code: Reframing the Unintended Tax Advantages of Gay Marriage

55 Pages Posted: 18 Nov 2005

Date Written: April 2007


The Code contains numerous special rules applicable to the income taxation of persons related by marriage, birth, or adoption. The collective importance of these related-party provisions to the income tax system is hard to overstate. This paper suggests a new approach to their analysis. Its thesis is simple: the rules of the Code depend, in significant part, on the assumption that taxpayers are self-interested and unaffiliated. In general, we are unwilling to transfer property or rights to income to others simply to avoid tax. Where this assumption proves or is likely to prove incorrect, the Code makes adjustments to its otherwise applicable rules. Sometimes such adjustments facilitate transfers between interpersonally committed individuals. More commonly, they shut down avoidance techniques. Some of these latter adjustments apply whenever the assumption of selfishness fails, regardless of the formal relationship between the parties. Most, however, apply only in the context of a specified formal relationship - marriage, parent/child, or owner/business.

The paper tests the utility of this thesis by comparing the income tax treatment of heterosexual married couples with that of gay couples in committed long-term relationships - which I refer to as married and spouses solely for ease of reference. It is clear that gay couples are not married for tax purposes, nor are they spouses within the meaning of the Code. Gay marriage by itself never invokes any related-party rules - taxpayer-favorable or anti-abusive. Part I explores five sample tax-avoidance problems that arise in the extended-family context. Part II then explores six problems that arise solely in the context of marriage. None of the anti-abuse rules enacted to deal with either set of problems applies to gay spouses. As a result, gay couples should be able to arrange their affairs so as to pay federal income tax at significantly lower effective rates, on average, than identically situated heterosexual married couples.

Part III, finally, draws general lessons from the diverse technical threads of the first two parts. Ultimately, the paper concludes that the only way to ensure that gay couples will be taxed no more favorably than heterosexual married couples is to list gay marriage as one of the proxy relationships that automatically invokes pertinent anti-abuse rules - in other words, to treat gay marriage as marriage for federal income tax purposes. Even this by itself, however, will not be enough. A formal spousal relationship will need to be made available to gays, and it needs to be attractive enough to induce gay couples to undertake it voluntarily - just as heterosexual couples marry despite the tax costs. In the absence of an attractive formal status that then invokes related-party anti-abuse rules, well-advised gay couples are, and will continue to be, permitted to pay systematically lower federal income taxes than heterosexual married couples - a result unlikely to be acceptable to a majority of Americans in the long run.

JEL Classification: H24, H31

Suggested Citation

Seto, Theodore P., The Assumption of Selfishness in the Internal Revenue Code: Reframing the Unintended Tax Advantages of Gay Marriage (April 2007). Loyola-LA Legal Studies Paper No. 2005-33, Available at SSRN: or

Theodore P. Seto (Contact Author)

Loyola Law School Los Angeles ( email )

919 Albany Street
Los Angeles, CA 90015-1211
United States
213-736-1154 (Phone)
213-380-3769 (Fax)

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