Cuccinelli declares a ban on gay tax returns

Timothy Kincaid

January 14th, 2014

The state of Virginia has conflicting law. On the one hand, the constitution of the state includes this language:

Only a union between one man and one woman may be a marriage valid in or recognized by this Commonwealth and its political subdivisions. This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage.

On the other, like most states, Virginia tries to closely conform with Federal tax law. In general, states will start with the federally calculated taxable income and make such revisions and adjustments as are necessary to tweak for local differences.

And the Federal Government now recognizes legal same-sex marriages for federal tax purposes, even if the couple is residing in a state, like Virginia, which does not recognize same-sex marriages. So there’s a conflict.

Some states have resolved this by taking a sort of ‘don’t ask, don’t tell’ approach. They work under the logic that they don’t recognize Sally and Sue as married. But if the Federal Government, for it’s own reasons, has decided to act as though Sally and Sue have a ‘married’ filing status (though, in our non-recognition, we have no idea why), then those two single gals should file their state taxes using the same filing that the Feds (for some unrecognized reason) requires of them.

But failed gubernatorial candidate, Ken Cuccinelli (R), certainly has no desire for his state to allow gay people the same ‘lower taxes’ rights that he champions for heterosexuals. Cuccinelli is one of those ‘small government conservatives’ who believes that the role of government is to monitor and restrict the minutia of your sex life.

And on his last day serving as the Attorney General of the state, he issued an opinion as to the legality of allowing the State Department of Revenue to follow the lead of the Internal Revenue Service:

It is my opinion that a Governor may not direct or require any agency of state government to allow same-sex couples to receive joint marital status for Virginia income tax returns. Such a directive would represent an attempt to exercise legislative powers in violation of the constitutionally mandated separation of powers and would also violate the express terms of Article I, § 15-A of the Virginia Constitution.

Because, you know, Teh Ghey!

Lindoro Almaviva

January 14th, 2014

and let’s hope the incoming AG will issue an opinion that reads something like this:

Yesterday, former AG issued an opinion on whether LGBT couples who have been married outside of the state can file joint taxes on the state of VA. As the current VA AG, I am here to tell you that Mr. Cuccinelli’s opinion should be used for the same purpose we use facial tissue (or to put it bluntly, y’all can wipe your asses with it, if you feel so inclined) because it is the opinion of the VA AG who is actually holding the job for the foreseeable future that these LGBT couple should file taxes jointly if they so chose. Any questions

or something like that

Hunter

January 14th, 2014

The courts will sort it out, because not matter what the governor does, someone will sue.

FYoung

January 14th, 2014

“The courts will sort it out, because not matter what the governor does, someone will sue.”

If the new AG is okay with implicitly recognizing same-sex marriages for tax harmonization purposes, and the new Governor agrees, I don’t know if anybody would have standing to sue.

occono

January 14th, 2014

Well I’ve gotten the impression the real question is what to do when state and federal taxes treat you differently and it’s perjury to lie on the form?

Timothy Kincaid

January 14th, 2014

FYoung,

” I don’t know if anybody would have standing to sue.”

So one would think. Yet in Missouri, “tax payers” have sued to try and block Gov. Jay Nixon’s executive order to do just that.

They have yet to show how they have been harmed.

Ben In Oakland

January 14th, 2014

Timothy, you mean “oooh. gay! Icky! and so does GAWD?” isn’t any kind of legal defense?

MattNYC

January 14th, 2014

His missive is non-binding and meaningless. It can and should be ignored.

Paul Douglas

January 15th, 2014

As a card-carrying christianist, Cuccinelli just has to get his last dig in.
Onward christianist soldiers.

ZRAinSWVA

January 15th, 2014

Interestingly enough, the state department of taxation recently issued guidance for married same-sex couples. While it basically just mirrors what Cuccinelli said, I like this part, “Since same-sex couples that are legally married in other states are considered unmarried for Virginia income tax purposes, such individuals must file their Virginia income tax returns as single taxpayers, regardless of whether they filed joint or separate federal returns.” (bolding mine) Further, they keep referring to us as “a same-sex married couple”. So, we’re married, you’re just not going to recognize it. Got it.

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