Category Archives: Community Property

National Taxpayer Advocate Urges the IRS to Issue Guidance to Domestic Partners and Same-Sex Married Couples

19 Tuesday Feb 2013

Posted by in Community Property, Legislation, RDP Tax Returns, Taxes

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The National Taxpayer Advocate Center is an office within the IRS designed to aid taxpayers in resolving their tax issues. They share responsibility with the IRS for evaluating systems and procedures. Each year the Taxpayer Advocate issues an annual report to Congress in which they make recommendations for improvements and identify systematic deficiencies.

The 2012 Annual Report submitted to Congress once again contained a request that the IRS provide authoritative guidance to domestic partners (DP) and same-sex couples (SSC). They have made this request each year since 2010 when new filing requirements were first implemented for DPs and SSCs living in community property states (CA, WA and NV).

To date, the only guidance the IRS has provided is an FAQ page that is periodically updated. The FAQ page is sadly insufficient however.  It excludes several issues that many DPs and SSCs face. Additionally, since the FAQ page is not authoritative it leaves over a million taxpayers in the position of being required to follow procedures to which there are little to no official rules. These taxpayers are thus forced to attempt to interpret the requirements on their own, or seek professional help from a tax advisor.

Each year the IRS has responded to the National Taxpayer Advocate Center with a claim that issuing guidance would be premature.  Their reasoning is that the political landscape surrounding DPs and SSCs is changing too rapidly and it would affect an “insignificant” number of taxpayers. While I do understand that until the Supreme Court rules DOMA unconstitutional the IRS’ rule making abilities are limited, I find it highly offensive to disregard the needs of over a million taxpayers because they are deemed “insignificant.” Meanwhile, the IRS has delayed tax return processing for the majority of Americans because of disputes on legislation that affects the small amount of taxpayers earning over $400,000/year.

The Taxpayer Advocate report also noted that data from the 2010 Census revealed an increase of documented DPs and SSCs of 100%. Since then, over five states have enacted legislation enabling Domestic Partnerships and/or Same-Sex marriages.  How many couples must there be before the IRS will help taxpayers? How many times must the Taxpayer Advocate urge Congress to enable the IRS to establish and implement authoritative guidance? Despite its apparent lack of effectiveness, it’s nice to know that someone is speaking up for DPs and SSCs. Thanks Taxpayer Advocate.

Loss of Head of Household Filing Status for Registered Domestic Partners in Washington and Nevada and Same-Sex Spouses in California

01 Saturday Sep 2012

Posted by in Community Property, RDP Tax Returns, Taxes, Washington

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As taxpayers we are always looking for ways to keep more of our money.  If you are unmarried, one of the easiest ways to save on taxes is to file as Head of Household (HOH) instead of Single.  The HOH filing status has both lower tax rates and a larger standard deduction. Together, these advantages can have a significant impact on your tax bill.

RDP taxpayers have been claiming HOH status under varying circumstances for many years.  Some have a child living in the home while others have been claiming their non-working spouse as a dependent in order to meet HOH requirements.  In some cases, though technically incorrect, RDPs have even both filed as HOH when the couple has more than one child.

There are certain requirements, commonly referred to as “tests,” that must be met in order to claim HOH status.  Unfortunately, the community property income splitting rules have caused most RDPs to suddenly fail to satisfy the requirements.

There are three tests and they must all be met to qualify for HOH status:

  1. Taxpayer must be unmarried, or “considered to be unmarried.”
  2. Taxpayer must pay for more than half the cost of keeping up the home.
  3. Taxpayer must have had a “qualifying person” (usually a child) living in the home more than half of the year[i].

The first test remains easy to meet since under all circumstances RDPs are still legally single for tax purposes. If you have a dependent child, the third test also remains easy to meet.  In most cases however, if you don’t have a child you will no longer be able to use your dependent partner to satisfy the third test. There are additional tests to meet in order to claim a dependent partner as a qualifying person. For purposes of this discussion, only one of these tests is relevant.  The partner must have gross income of less than $3,700; this is known as the “gross income test.”

Now that wages, and most other types of income, are reported 50/50 between the partner’s two returns, it is almost certain that both partner’s incomes will exceed $3,700[ii]. With no child or partner who can be considered a qualifying person the third HOH test is not met and the taxpayer must file as Single.

The more common, yet less complex, reason for losing HOH status is failing to meet the second “cost of keeping up the home” test.  Since, typically, under community property rules all income is split 50/50, neither partner can qualify as paying for more than half of the cost of keeping up the home.  HOH status is lost and both partners must file as Single.

Luckily with some strategic planning, assuming the first two tests are met, there are ways to ensure that one partner can still file as HOH.  All that is needed is any amount of separate income.  If one partner has separate income, then their share of total income will be greater than 50% and may then justify the claim that they provide more than 50% of the cost of keeping up the home.

What is separate income then? There are several income sources that are intrinsically considered to be separate:

  1. Income from an inheritance provided that the underlying assets earning the income have remained physically separate and have not commingled with community property assets.
  2. Distributions from retirement funds that were earned, partially or wholly, prior to registration or marriage.
  3. Distributions from IRA accounts are always considered separate regardless of whether they were funded by property otherwise considered as community.
  4. Social Security benefits that were earned, partially or wholly, prior to registration or marriage.

There are a number of other grey area income sources, such as Health Savings Account distributions, to which the IRS has made no comment.  Income may also be designated as separate by creation of a separate property agreement. Regardless of the source of the separate income, having it or creating it can be a financially rewarding planning strategy. You may want to consult your tax professional to determine how, and if, you can maintain your eligibility to file as HOH.

[i] There is an exception to this rule. If you have a parent that you can claim as a dependent, they do not have to live with you.

[ii] This creation of reportable income also usually means that the non-working spouse must now file their own tax return when they didn’t before.

Social Security Issues for Self-Employed Registered Domestic Partners in Washington

15 Wednesday Feb 2012

Posted by in Community Property, RDP Tax Returns, Social Security, Taxes, Washington

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The absence of federal marriage equality has a powerful impact on your social security. I briefly touched on this in a previous post, Washington to Legalize Same-Sex Marriage?. What I discussed there was in the context of survivor benefits which is unfortunately only one of the social security issues that “unmarried” couples face.

Let’s start with how you accumulate the benefits in the first place.  When you are an employee, your employer withholds social security taxes from your wages at the rate of 6.2%. Additionally, your employer makes a match of this withholding at their own expense. The amounts are reflected on your W2 and from here go toward your social security credits; in other words, this is where your social security benefits come from. These amounts, from wages, are not affected by the income-splitting rules for RDP taxpayers. Even though you will be combining and splitting your W2 wages for income tax purposes, the social security credits are still calculated from your employment records.

This is not the same for self-employed people. When you are self-employed, you report and pay your own social security tax, and since you employ yourself, you also have to pay the match. This means you are paying taxes on your earnings at 12.4% instead of 6.2%, a part of what is collectively known as self-employment tax. The tax is calculated on your return as a percentage of your net self-employment income (net profit). On a married filing joint return, self-employment income is linked to a social security number so that only the earner is credited for the social security. When spouses file separately in community property states, even though the self-employment income is split, the self-employment tax is only imposed upon the earner or owner of the business.

The same is not true for RDPs. The special rule allowing the self-employment income earner to receive full credit for the social security, so as to be comparable to how it works with wages, only applies to spouses.  Again, because of semantics, these protections do not extend to RDPs. Many tax preparers, including me, feel that the IRS’s position on this issue is incorrect.

There are consequences to this treatment of self-employment tax. Firstly, if both partners are working, it means that one partner is getting 100% credit for the social security attributable to their own wages and 50% of the social security attributable to their partner’s self-employment income. The self-employed partner is only getting 50% of their self-employment credits and 0% of their partner’s wage credits.  For many, this is a problem, but for some it could be a benefit.

If one partner is self-employed and the other is not working at all, this treatment allows the non-working partner to accumulate social security credits. This can be extremely important for some since, unlike spouses, a surviving partner is not eligible to receive the deceased partner’s unused benefits. It basically provides a loophole to funnel social security benefits to a non-working partner.

To me though, this potential benefit does not outweigh the potential drawbacks. As is the case with many problems arising from unequal federal rights, there is an issue of double taxation. Let me explain.  There is a wage base for social security tax. This means that once you exceed a certain wage level, the earnings above that level are no longer subject to social security tax. In 2012, that base is $110,100 and it applies to both wages and self-employment income. So, if a single or married person makes $150,000, only the first $110,100 is subject to the social security tax. What if you are an RDP in a community property state with $150,000 in self-employment income? The full $150,000 is taxable.   

An example: One partner has $200,000 in self-employment income. The rules require this to be split so that each partner reports, and is taxed on, $100,000. Both partner’s shares are now, in their entirety, subject to social security tax since the reportable amounts are both beneath the wage base. This means that social security tax is imposed on the whole $200,000 resulting in $11,148 more tax than a married or single person would have to pay. 

While it’s true that most RDP taxpayers are not bringing home over $110,100 in self-employment income, I find it extremely alarming that this sort of disparity in taxation is built into our current tax system. Of course, there are ways to get around this taxation issue. However, to do so would require consulting a financial or legal professional; just another example of the unnecessary burden the income splitting rules put on RDP taxpayers.

It’s Tax Time: What you Need to Know if you are a Registered Domestic Partner in the State of Washington

24 Tuesday Jan 2012

Posted by in Community Property, RDP Tax Returns, Taxes, Washington

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In 2010, the IRS made drastic changes to the filing requirements for Registered Domestic Partners (RDPs) in Washington State.  Didn’t know about these changes? You are not alone.  It was a scramble for many in 2011. Some learned of the changes just before the filing deadline, while others remained unaware until after they had filed their returns.  

During the 2010 tax year, the IRS began to acknowledge the community property rights granted to Washington RDPs under state law.  At first, a federal agency recognizing same-sex relationships sounded exciting.  It soon became clear however that the IRS is certainly not recognizing these relationships.  Rather, they are simply allocating and taxing income according to who Washington says it belongs to.  This is not to say that the new rules are a bad thing.  While they still fail to provide the same tax protections afforded spouses, the new rules are beneficial to many RDP taxpayers. The trouble is that they are confusing and burdensome to follow.

For spouses, who are able to file jointly, community property does not pose a problem.  Everything is combined onto one return so it doesn’t matter whose is whose.  For RDPs, who cannot file jointly, recognition of community property is a big problem.  In a community property state, the old adage “what’s mine is yours, what’s yours is mine” is true, and it applies to income.  The question then becomes how to report this income for tax purposes.

Let’s start from the beginning.  This is not the first time that taxpayers have been faced with this problem.  The community property concept dates back to early Germanic tribes, long before the advent of joint tax returns. Community tax reporting issues first arose in the 1930s when a man by the name of Seaborn, coincidentally from Washington, reported only half of his wages to the IRS.  Seaborn reasoned, and rightly so, that he should only have to pay tax on half of the income since, according to state law, only half of it was his. The IRS disagreed and assessed interest and penalties on his return. A series of legal battles then began and the US Supreme Court eventually ruled in Seaborn’s favor.  As a result, Congress amended the tax code and created joint tax returns.

Once spouses were able to combine income onto one return, the issue was largely forgotten. Then, seventy five years later, California became the first state to grant community property rights to same-sex couples and a similar tax reporting problem arose. The first arguments for RDP community property recognition began in 2005. When the IRS responded, one year later in 2006, they said that the precedence created by the Seaborn case only applied to spouses and that RDPs are not spouses as defined by the Defense of Marriage Act (DOMA).  After several court cases in the state of California, culminating in May of 2010, the IRS finally changed its position. Now, same-sex spouses in California, and by default RDPs in Washington and Nevada, are required to file according to community property rules.

Unfortunately, there is very little IRS instruction on how to follow these rules.  To date, the only guidance is an FAQ page and a publication that was originally written for spouses who are married filing separately. The IRS merely inserted “Or RDP/Same Sex Spouse in California” throughout the text of the publication and, thanks to DOMA, much of it is inapplicable as it is filled with explanations of rules that only apply to spouses.

Luckily, once you figure out how to file the return, and what numbers to put on it, the end result may be a larger refund. Those who benefit most are couples in which one partner is a significantly higher earner than the other, or those in which one partner does not work at all. In these situations, when the incomes are combined and split, because most income is community income, the income is taxed at a lower rate. For example, if one partner makes $100,000 and the other $0, and it is all community income, each partner will report $50,000. The tax rate is lower at $50,000 than it is at $100,000. This means that the entire $100,000 is taxed at a lower rate, resulting in less tax owed. In the example above, even a 2% drop in tax rate could mean a $2,000 savings.

Additionally, the IRS is allowing, but not requiring, taxpayers to amend prior year returns in order to apply the rules retroactively.  You may want to consider amending your 2009 and 2010 returns. If the new rules would have resulted in a larger refund in one of these years, amending may get you a check from the IRS, with interest.

The new rules can be complex and there are many issues I have neglected to go into here. I’ll be posting more entries discussing these issues in more detail, along with various methods of handling them. Until then, take solace in the confusion. Many believe that these uncertainties will lead to a new federal filing status option for Registered Domestic Partners. As unsatisfying and incomplete as the new rules are, they just may be a stepping stone to marriage equality.