Will New York recognize a same-sex marriage performed in Canada for state personal income tax filing status purposes?

Plain-English summary

John Galanti asked the New York State Department of Taxation and Finance whether his marriage to his same-sex partner, legally performed in Canada in 2004, would be recognized for New York State personal income tax purposes. Both Galanti and his partner were New York State residents.

The Department explained that New York's personal income tax provisions generally borrow their meaning from federal tax law under Tax Law § 607(a), and that this principle is reinforced for marital and filing status specifically: Tax Law § 607(b) ties an individual's marital status to the status used for federal income tax rate-setting, and Tax Law § 651(b) ties New York filing status directly to federal filing status. A parallel regulation, 20 NYCRR 151.10(b)(1), confirms that the federal rules for qualifying as a joint-filing husband and wife also govern for New York purposes.

At the time of this opinion, the federal Defense of Marriage Act (Pub. L. 104-199, codified at 1 U.S.C. § 7) defined "marriage," for purposes of any federal law or agency ruling, as a legal union between one man and one woman, and defined "spouse" as a person of the opposite sex who is a husband or wife. Because the IRS did not recognize same-sex marriages - including a Canadian same-sex marriage - as marriages for federal income tax purposes, Galanti and his partner could not be treated as married on a federal return.

Since New York filing and marital status follow the federal determination, the Department concluded that Galanti's Canadian same-sex marriage likewise was not a marriage for New York State personal income tax purposes.

What this means for you

Same-sex couples married outside New York (as of this 2006 opinion)

At the time this opinion was issued, a same-sex marriage - even one legally performed abroad, such as in Canada - was not recognized for New York personal income tax filing status. That meant the couple could not file a joint New York return based on that marriage, because New York's filing and marital status rules track the federal definition, and federal law under DOMA did not recognize the marriage.

Accountants and tax professionals

When evaluating filing status for a same-sex couple under law as it existed at the time of this 2006 opinion, remember that New York did not independently define "marriage" for income tax purposes - it deferred entirely to the federal determination under Tax Law §§ 607(b) and 651(b). Practitioners should note that this opinion predates later developments in the law of marriage recognition (both federal and New York), and should confirm the law in effect for the tax year at issue before relying on this opinion's holding.

Common questions

Q: Why didn't New York just recognize the Canadian marriage on its own terms?
A: Because Tax Law § 607(b) and § 651(b) specifically tie an individual's marital and filing status for New York personal income tax purposes to the status used for federal income tax purposes, rather than letting New York make an independent determination.

Q: What federal law was the obstacle here?
A: The federal Defense of Marriage Act, 1 U.S.C. § 7 (added by Pub. L. 104-199), which defined "marriage" as a union between one man and one woman and "spouse" as a person of the opposite sex, for purposes of any federal law, ruling, regulation, or interpretation - including IRS determinations of federal filing status.

Q: Did it matter that the marriage was legally valid in Canada?
A: No. The opinion states that because the IRS did not recognize same-sex marriages for federal income tax purposes, a Canadian same-sex marriage was not treated as a marriage for federal income tax purposes, and therefore was not a marriage for New York personal income tax purposes either.

Q: Could the couple file a joint New York return?
A: Not on the basis of this marriage. Since they could not file a joint federal return as husband and wife under 26 U.S.C. § 6013(a), Tax Law § 651(b) and 20 NYCRR 151.10(b)(1) meant they likewise could not file a joint New York return as spouses.

Citations and references

• Tax Law § 607(a) - New York personal income tax terms have the same meaning as the comparable federal income tax terms, absent a clearly required different meaning
• Tax Law § 607(b) - an individual's marital status for New York purposes is the same as the marital status established for federal income tax rate-setting purposes
• Tax Law § 651(b) - an individual's New York filing status (separate or joint) is determined by federal filing status
• 20 NYCRR 151.10(b)(1) - the federal rules for qualifying as a joint-filing husband and wife also apply for New York personal income tax purposes
• 26 U.S.C. § 6013(a) - a husband and wife may make a single joint federal income tax return
• 1 U.S.C. § 7 (added by Pub. L. 104-199, the federal Defense of Marriage Act) - defines "marriage" as a legal union between one man and one woman and "spouse" as a person of the opposite sex who is a husband or wife, for purposes of federal law and agency rulings

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_2006.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a06_2i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-06(2)I
Income Tax
April 4, 2006

Office of Tax Policy Analysis
Technical Services Division
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I050208A

On February 8, 2005, a Petition for Advisory Opinion was received from John Galanti,
c/o Alphonso David, Esq., Lambda Legal Defense and Education Fund, 120 Wall Street, Suite
1500, New York, New York 10005.
The issue raised by Petitioner, John Galanti, is whether Petitioner’s marriage to his same­
sex partner will be recognized for New York State personal income tax purposes.
Petitioner submits the following facts as the basis for this Advisory Opinion.
Petitioner was legally married to his same-sex partner in Canada in 2004. Petitioner and
his partner are both residents of New York State.
Applicable law and regulations
Section 607(a) of the Tax Law provides:
General. Any term used in this article shall have the same meaning as when used
in a comparable context in the laws of the United States relating to federal income taxes,
unless a different meaning is clearly required but such meaning shall be subject to the
exceptions or modifications prescribed in this article or by statute. Any reference in this
article to the laws of the United States shall mean the provisions of the internal revenue
code of nineteen hundred eighty-six (unless a reference to the internal revenue code of
nineteen hundred fifty-four is clearly intended), and amendments thereto, and other
provisions of the laws of the United States relating to federal income taxes, as the same
may be or become effective at any time or from time to time for the taxable year.
Section 607(b) of the Tax Law provides:
Marital or other status. An individual’s marital or other status under section six
hundred one, subsection (b) of section six hundred six and section six hundred fourteen
shall be the same as his marital or other status for purposes of establishing the applicable
federal income tax rates.
Section 651(b) of the Tax Law provides, in part:
(1) If the federal income tax liability of husband or wife is determined on a
separate federal return, their New York income tax liabilities and returns shall be
separate.

-2­
TSB-A-06(2)I
Income Tax
April 4, 2006

(2) If the federal income tax liabilities of husband and wife (other than a husband
and wife described in paragraph four of this subsection) are determined on a joint federal
return, they shall file a joint New York income tax return, and their tax liabilities shall be
joint and several except as provided in paragraph six of this subsection, section six
hundred fifty-four and subsection (e) of section six hundred eighty-five.
(3) If neither husband or wife files a federal return:
(A) they shall file a joint New York income tax return, and their tax liabilities
shall be joint and several except as provided in paragraph six of this subsection, section
six hundred fifty-four and subsection (e) of section six hundred eighty-five, or
(B) they may, if both so elect, file separate New York income tax returns, in
which event their tax liabilities shall be separate.
(4) If either husband or wife is a resident and the other is a nonresident or part­
year resident, they shall file separate New York income tax returns, in which event their
tax liabilities shall be separate, unless such husband and wife determine their federal
taxable income jointly and both elect to determine their joint New York taxable income
as if both were residents, in which event their tax liabilities shall be joint and several
except as provided in paragraph six of this subsection, section six hundred fifty-four and
subsection (e) of section six hundred eighty-five.
Section 151.10(b)(1) of the New York State Personal Income Tax Regulations
(Regulations) provides, in part:
General. The Federal rules for determining whether a husband and wife qualify
for filing a joint Federal income tax return also apply for New York State personal
income tax purposes. . . .
Section 6013(a) of the Internal Revenue Code provides, in part:
Joint Returns. A husband and wife may make a single return jointly of income
taxes under subtitle A, even though one of the spouses has neither gross income nor
deductions. . . .
Section 7 of Title 1 of the United States Code, as added by Public Law 104-199 (the
Federal Defense of Marriage Act), enacted September 21, 1996, provides:
Definition of “marriage” and “spouse”

-3­
TSB-A-06(2)I
Income Tax
April 4, 2006

In determining the meaning of any Act of Congress, or of any ruling, regulation, or
interpretation of the various administrative bureaus and agencies of the United States, the word
“marriage” means only a legal union between one man and one woman as husband and wife, and
the word “spouse” refers only to a person of the opposite sex who is a husband or a wife.
Opinion
Section 607(a) of the Tax Law provides that any term found in the personal income tax
provisions of the Tax Law shall have the same meaning as the term has for federal income tax
purposes, unless a different meaning is clearly required, but such meaning shall be subject to
exceptions or modifications by the personal income tax provisions of the Tax Law or by other
statute. If a different meaning is clearly required, departure from the federal definition is
acceptable even though there is no specific exemption or modification in the Tax Law.
However, section 607(b) of the Tax Law supplements section 607(a) of the Tax Law by
specifically providing that an individual’s marital status is the same as such individual’s marital
status established for federal income tax rate setting purposes. Section 651(b) of the Tax Law
provides that an individual’s New York filing status is determined by his or her filing status for
federal income tax purposes. Therefore, New York State follows the federal determination of
filing status.
Under the Federal Defense of Marriage Act (P.L. 104-199), the Internal Revenue Service
does not recognize same-sex marriages for federal income tax purposes, including for purposes
of filing a joint return. Therefore, Canadian same-sex marriages are not treated as marriages for
federal income tax purposes.
Accordingly, since Petitioner’s marriage to his same-sex partner is not a marriage for
federal income tax purposes, it is not a marriage for New York State personal income tax
purposes.

DATED: April 4, 2006

NOTE:

/s/
Jonathan Pessen
Tax Regulations Specialist IV
Technical Services Division

The opinions expressed in Advisory Opinions are
limited to the facts set forth therein.