In accordance with its state constitutional ban on same-sex marriage, the Virginia Department of Taxation ruled the state will not correspond with newly mandated United States Internal Revenue Service’s (IRS) policy—equal treatment for same-sex married couples.
Consequently, same-sex couples in Virginia can file federal tax returns as married, jointly or separately, while their state returns must be filed as singles. Tax officials maintain that the decision was made in order to abide by the state’s 2006 constitutional amendment banning same-sex unions.
“It’s not a tax issue. It’s a constitutional matter,” said Taxation Department spokesman Joel Davison. “An administrator can’t go against his or her state constitution.”
According to a November 8 bulletin from the Department of Taxation, the decision will impact deductions, exemptions, and tax credits for low-income taxpayers. Businesses are also at risk of increased expenses.
Reverend Robin H. Gorsline, president of Virginia’s People of Faith for Equality, is frustrated with the state’s exclusionary decision.
“In terms of the tax issue, Virginia’s got you coming and going as a same-sex couple,” said Gorsline. “You can’t win.”
The ACLU of Virginia called the decision a “reaffirmation of the state’s ongoing hostility toward lesbian, gay, bisexual, and transgender Virginians, including legally married same-sex couples.”
ACLU Executive Director Claire Guthrie Gastañaga hopes that civil rights groups will be able to convince Governor Terry McAuliffe to sign an executive order allowing married same-sex couples (that were married in states with legal marriage equality) to file joint tax returns in Virginia.
Should McAuliffe decide to do so, he would be following in the footsteps of Missouri Governor Jay Nixon, who signed an executive order last month. Missouri also has a state constitutional ban on same-sex marriage. However, Virginia’s ban may prove harder to circumnavigate since it explicitly forbids the government from granting “rights, benefits, obligations, qualities, or effects of marriage” to same-sex unions.
But some same-sex couples, like Gorsline and his partner of sixteen years, Jonathan Lebolt, opted not to marry in another state in order to avoid the “marriage tax penalty”—a hiccup that requires some couples to pay more income tax than two single people with the same income. “It was actually going to cost us money to go get married and file jointly,” said Gorsline.
Others don’t mind the penalty, so long as it means they are treated equally.
“If my brother has to file jointly and pay more in taxes because he’s married, why shouldn’t I?” said Marc Purintun, a Richmond lawyer who specialized in employment benefits. Puritan married his husband in California in 2008. “And so as a citizen, I’m happy to pay the taxes when I’m being treated equally. What’s frustrating is for Virginia to carve out one small group of people—legally married same-sex couples—and say our tax policy applies equally to everybody but you.”