Law Commons^™

Hegemonic Marriage: The Collision Of 'Transformative' Same-Sex Marriage With Reactionary Tax Law, Anthony C. Infanti

Articles

Before there was a culture war in the United States over same-sex marriage, there was a battle between opponents and proponents of same-sex marriage within the LGBTQ+ community. Some opposed same-sex marriage because of the long patriarchal history of marriage and the more consequential need to bridge the economic and privilege gap between the married and the unmarried. Others, in contrast, saw marriage as a civil rights issue and lauded the transformative potential of same-sex marriage, contending that it could upset the patriarchal nature of marriage and help to refashion marriage into something new and better.

This Article looks back …

Caregivers And Tax Reform: Before And After Snapshots, Shannon Weeks Mccormack

Articles

The Tax Cuts and Jobs Act (TCJA) changed the way families are taxed, starting in tax year 2018. By rearranging a myriad of deck chairs, politicians painted rosy pictures of families reaping the benefits of tax reform. In reality, however, generalizations cannot be made and the extent to which any one family gains or loses depends on particular facts. Even more obscured is the way in which the TCJA changed –– and failed to change –– the taxation of different types of caregivers. This Essay seeks to provide needed clarity in this area. It begins by offering snapshots of how …

Back To The Future: Marriage And Divorce Under The 2017 Tax Act, Mark Cochran

St. Mary's Law Journal

Abstract forthcoming

Back To The Future: Marriage And Divorce Under The 2017 Tax Act, Mark W. Cochran

Faculty Articles

The Tax Cuts and Jobs Act of 2017 (the 2017 Tax Act) significantly altered the federal tax consequences of marriage and divorce by mostly eliminating the so-called "marriage penalty" from the individual income tax rates and abolishing the deduction for alimony payments. These changes represent the latest congressional tinkering with issues that have persisted since the earliest days of the modem income tax, turning back the clock with regard to taxation for both married and divorced couples. For the first time, since the enactment of the Tax Reform Act of 1969, the rate brackets for married taxpayers filing joint returns …

Comments On Proposed Treasury Regulations Defining Terms Relating To Marital Status, Anthony C. Infanti, The American Bar Association

Articles

These comments respond to proposed Treasury Regulations defining terms relating to marital status in the Internal Revenue Code following the Supreme Court's decision in the Windsor and Obergefell cases. The comments applaud the Internal Revenue Service for reading gendered terms relating to marital status in a gender-neutral fashion. For a number of reasons, however, the comments recommend that the final regulations omit the proposed rule for determining an individual’s marital status and, in its place, codify the current deference to local law in determining marital status for federal tax purposes. Most importantly, the comments further recommend that the final regulations …

With Marriage On The Decline And Cohabitation On The Rise, What About Marital Rights For Unmarried Partners?, Lawrence W. Waggoner

ACTEC Law Journal

This article draws attention to a cultural shift in the formation of families that has been and is taking place in this country and in the developed world.

Part I uses recent government data to trace the decline of marriage and the rise of cohabitation in the United States. Between 2000 and 2010, the population grew by 9.71%, but the husband and wife households only grew by 3.7%, while the unmarried couple households grew by 41.4%. A counter-intuitive finding is that the early 21st century data show little correlation between the marriage rate and economic conditions.

Because of the Supreme …

Victims Of Our Own Success: The Perils Of Obergefell And Windsor, Anthony C. Infanti

Articles

This short essay was spurred by the numerous celebrations of the Supreme Court’s recent decision in Obergefell v. Hodges legalizing same-sex marriage in all fifty states. Though the essay acknowledges the importance of both Obergefell and the Supreme Court’s earlier decision in United States v. Windsor, it highlights the significant perils that these decisions entail for the LGBT community. In the essay, I use tax as a lens for describing some of the lesser-known perils associated with these decisions in the hopes of making those perils more concrete and easily understood by a wide audience of (tax and nontax) …

Marriage Pluralism: Taxing Marriage After Windsor, David J. Herzig

Law Faculty Publications

No abstract provided.

Moving Beyond Marriage: A Proposed Unit Of Presumed Economic Interdependence For Joint Filing Purposes In Bankruptcy And In Tax, Heather V. Graham

Pace Law Review

In order to promote both equality and efficiency, this Comment proposes that individuals should have the opportunity to file jointly for tax and bankruptcy purposes when they have a relationship predicated upon economic interdependence, as opposed to basing the opportunity to file jointly upon marital status. Part I of this Comment will briefly discuss the history of marriage in the United States. In particular, Part I will discuss the role that the government has had in promoting and regulating marriage and how the treatment of married persons operates to the exclusion of the unmarried. Parts II and III of this …

Lgbt Families, Tax Nothings, Anthony C. Infanti

Articles

The federal tax laws have never been friendly territory for LGBT families. Before the enactment of the federal Defense of Marriage Act (DOMA), the federal tax laws turned a blind eye to the existence of LGBT families by tacitly embracing state law discrimination against same-sex couples. When it enacted DOMA in 1996, Congress ensured that it would be able to continue to turn a blind eye to LGBT families even if one or more states were to legally recognize families headed by same-sex couples. In a real sense, LGBT families have been, and continue to be, tax outlaws.

This overt …

The House Of Windsor: Accentuating The Heteronormativity In The Tax Incentives For Procreation, Anthony C. Infanti

Articles

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this essay continues my work plumbing the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of our federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle …

Big (Gay) Love: Has The Irs Legalized Polygamy?, Anthony C. Infanti

Articles

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 …

Decoupling Taxes And Marriage: Beyond Innocence And Income Splitting, Michelle L. Drumbl

Michelle L. Drumbl

None available.

The Marriage Tax Revisited: An Analysis Of The Tax Consequences Of Marriage, Dan Subotnik

Dan Subotnik

No abstract provided.

Decoupling Taxes And Marriage: Beyond Innocence And Income Splitting, Michelle Lyon Drumbl

Scholarly Articles

Fourteen years ago, members of Congress sympathetically listened as divorcees testified to their struggles to raise children while being pursued by the Internal Revenue Service for tax debts, often unknown to them, that were attributable to their ex-husbands' income. Rather than adopting one of many proposals to end joint and several liability, Congress instead elected to expand the grounds on which these individuals could seek relief from such liability. Since that time, taxpayers have seen a steady expansion of the grounds for so-called “innocent spouse relief” that has evolved through a combination of legislative, administrative, and judicial action. Yet the …

Requirements Of A Valid Islamic Marriage Vis-À-Vis Requirements Of A Valid Customary Marriage In Nigeria, Olanike Sekinat Odewale Mrs

Olanike Sekinat Adelakun

Taxing Civil Rights Gains, Anthony C. Infanti

Articles

In this article, I take a novel approach to the question of what constitutes a "tax." I argue that the unique burdens placed on same-sex couples by the federal and state "defense of marriage" acts (the DOMAs) constitute a tax on gay and lesbian families.

Classifying the DOMAs as a "tax" has important substantive and rhetorical consequences. As a tax, the DOMAs are subject to the same constitutional restrictions as other taxes. This opens them to challenge under the federal constitution's direct tax clauses and the uniformity clauses present in many state constitutions. Where such constitutional challenges are unavailable or …

One Flesh, Two Taxpayers: A New Approach To Marriage And Wealth Transfer Taxation, Bridget J. Crawford

Elisabeth Haub School of Law Faculty Publications

This article critically examines the estate and gift tax rules currently applicable to martial wealth transfers and proposes a new system in which all transfers between spouses will be subject to taxation. The article begins by tracing the historic development of what the author calls the "one flesh, one taxpayer" approach to wealth transfer taxation. Over a period of more than thirty years, the marital deduction evolved from a tool for achieving geographic uniformity into an institution based on an unreal and idealized story of proper gender roles and the economic significance of marriage. After describing the wealth transfer tax …

Reconsidering The Mythical Advantages Of Cohabitation: Why Marriage Is More Efficient Than Cohabitation, Eric P. Voigt

Indiana Law Journal

No abstract provided.

An International Comparison Of Taxation Of Married Individuals: Is The "Marriage Tax" Unique To The United States?, Ralph Fritzsch, Neal Matthys, Arthur Andersen, Neal Vazante

Mountain Plains Journal of Business and Technology

The "marriage penalty" or "marriage tax" is a topic of considerable current interest. The purposes of this paper are to provide an explanation and brief example of the "marriage tax," a brief history of how it become part of the US tax code, and a comparison of how marital status affects tax liability in three other English speaking countries (Canada, England, and Australia) with progressive income taxes similar to the US.

Modern Coverture: Old Wine In Old Bottles, William P. Lapiana

Articles & Chapters

No abstract provided.

The Marriage Tax Revisited: An Analysis Of The Tax Consequences Of Marriage, Dan Subotnik

Scholarly Works

No abstract provided.

Federal Tax Lien—Forced Sale Of The Homestead Interest Of A Non-Delinquent Spouse, Allen C. Dobson

University of Arkansas at Little Rock Law Review

No abstract provided.

The Haitian Vacation: The Applicability Of Sham Doctrine To Year-End Divorces, Michigan Law Review

Michigan Law Review

This Note examines the propriety of applying the sham doctrine to tax-motivated divorces. Section I outlines the evolution of the sham doctrine from its exposition in Gregory v. Helvering through its expression in two different tests for commercial transactions. Section II then studies the relationship between state divorce law and the marital status provisions of the Internal Revenue Code to demonstrate the clear congressional preference for incorporating state law by reference rather than creating an independent federal law of marriage. It also examines the history of the 1969 Tax Reform Act in a vain effort to discern a congressional desire …

Joint Tenancy: The Estate Lawyer's Continuing Burden, John E. Riecker

Michigan Law Review

The discussion which follows will be divided into three major parts. First, it will be important to see why so much real and personal property remains in joint tenancy between husband and wife or in entireties tenancy. It has been almost eighteen years since Congress eliminated the necessity of holding property in this form in order to split income therefrom for income tax purposes. Is inertia the only reason for the popularity of joint ownership, or are there other reasons? Second, we shall review the familiar but false assumptions most laymen (and even a few attorneys) commonly make regarding the …

Widow's Succession In Common-Law Property State To Husband's Rights In Her Half Of Community Property Is Taxable And Valued At One-Half Of Entire Community--In Re Kessler's Estate, Michigan Law Review

Michigan Law Review

While residing with his wife in California, decedent purchased stock, which under California law became community property. The couple later moved to Ohio, a common-law property state, where decedent died. An Ohio probate court approved the executor's determination that the widow's one-half interest in the stock was not subject to the Ohio succession tax. On appeal by the state tax commissioner to the Ohio Supreme Court, held, reversed, three judges dissenting. A wife's succession to her husband's right to manage and control her half of the community property is subject to the Ohio succession tax on joint and survivorship …

Net Operating Loss Sustained By Taxpayer Prior To Marriage Cannot Be Applied Subsequently Against Spouse's Income- Calvin V. United States, Michigan Law Review

Michigan Law Review

Prior to marriage, plaintiff-wife sustained net operating losses which she was entitled to carry over under section 172 of the Internal Revenue Code. For the year 1959, the plaintiffs filed a joint return in which they applied the wife's net operating loss carryover deduction to both of their incomes. The Commissioner allowed the loss carryover to be applied to the wife's but not to the husband's income. In a suit for refund of taxes withheld from the husband's wages, held, judgment for defendant. If a husband and wife elect to file a joint return, net operating losses sustained by …

Marital Deduction Formula Clauses In Estate Planning-Estate And Income Tax Considerations, Alan N. Polasky

Michigan Law Review

Once upon a time, and not so very long ago, a child was born, much to the delight of its lawyer-parents. As children will, it brought much joy and only occasional moments of dismay and concern during its early, formative years. But one day it entered the terrible teens, and at age sixteen it became, like many teen-agers, baffling, confusing, and frustrating, giving rise to frenzied attempts to cope with and control the complexities of its behavior. Its name? The Federal Estate Tax Marital Deduction.

Some General Aspects Of Michigan Community Property Law, William E. Burby

Michigan Law Review

The common law, in recognition of the fact that one spouse is entitled to some economic security in the property of the other spouse, evolved the interests known as dower and curtesy. These interests, of course, apply only with respect to land. The husband enjoyed an additional economic advantage that came from the management and control of his wife's property. This latter advantage has disappeared with the advent of Married Women's Property Acts that confer upon married women the right to manage their own estates. Statutes have also expanded on the concept of dower and curtesy by providing for a …