Will a same-sex marriage legally performed in Canada be recognized for New York State and New York City personal income tax purposes?

Plain-English summary

Martin Farach-Colton asked the Department whether his marriage to his same-sex partner - legally performed in Canada in 2003 - would be recognized for New York State personal income tax purposes. Both Petitioner and his partner were New York City residents.

The Department explained that New York's Tax Law generally borrows federal definitions: under Tax Law § 607(a), terms used in Article 22 (the personal income tax article) carry the same meaning they have for federal income tax purposes unless a different meaning is clearly required. More specifically, Tax Law § 607(b) provides that an individual's marital status for New York purposes is the same as his or her marital status for setting federal income tax rates, and Tax Law § 651(b) ties New York joint or separate filing status directly to federal filing status. Under 20 NYCRR 151.10(b)(1), the federal rules for who qualifies to file a joint federal return also govern joint New York returns, and 20 NYCRR 290.2(a) extends all of these State personal income tax rules to the New York City personal income tax as well.

At the time, the federal Defense of Marriage Act (1 U.S.C. § 7, added by Pub. L. 104-199) defined "marriage" for all federal purposes 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. Because of that federal definition, the IRS did not recognize same-sex marriages - including marriages validly performed abroad, such as in Canada - for federal income tax purposes, including the ability to file a joint federal return under 26 U.S.C. § 6013(a).

Since New York's marital-status and filing-status rules are keyed to the federal determination, and Petitioner's Canadian marriage was not a marriage for federal income tax purposes, the Department concluded it likewise was not a marriage for New York State or New York City personal income tax purposes.

What this means for you

Same-sex couples married outside New York

As of this 2006 opinion, a same-sex marriage - even one legally performed in another country - was not recognized for New York State or New York City personal income tax purposes, because New York's filing and marital status rules follow the federal determination, and federal law (DOMA) did not recognize such marriages. This meant no joint New York or NYC income tax return could be filed on the basis of the marriage.

Accountants and tax professionals

When advising clients on pre-marriage-equality filings, remember that New York's Article 22 marital and filing status rules (Tax Law §§ 607(b), 651(b)) are federal-conformity rules - they track the federal rate-setting and joint-return determinations rather than New York's own domestic-relations law. This opinion predates both New York's 2011 recognition of same-sex marriage and the U.S. Supreme Court's 2013 and 2015 DOMA/marriage-equality decisions, so it reflects law and policy that has since changed.

Common questions

Q: Why did the Department look to federal law instead of just applying New York's own marriage rules?
A: Because Tax Law §§ 607(a) and 607(b), and Tax Law § 651(b), specifically define marital and filing status for New York personal income tax purposes by reference to federal income tax rate-setting and filing status, not by reference to state marriage law generally.

Q: Did it matter that the marriage was legally valid in Canada?
A: No. The opinion turned on whether the marriage was recognized for federal income tax purposes. Under the federal Defense of Marriage Act (1 U.S.C. § 7), a same-sex marriage was not a "marriage" for any federal purpose, regardless of where it was validly performed.

Q: Did this ruling also apply to the New York City personal income tax?
A: Yes. 20 NYCRR 290.2(a) applies the State personal income tax rules, including the marital-status and filing-status rules, to the New York City personal income tax in the same manner.

Q: Is this ruling still good law today?
A: No. It reflects the law and Department policy in effect in April 2006, before New York recognized same-sex marriage (2011) and before the U.S. Supreme Court invalidated DOMA's federal definition of marriage and required nationwide recognition of same-sex marriage. Consult a current tax professional rather than relying on this opinion's outcome.

Citations and references

• Tax Law § 607(a) - Article 22 terms carry federal income tax meaning absent a clearly required difference
• Tax Law § 607(b) - an individual's marital status follows federal income tax rate-setting status
• Tax Law § 651(b) - joint or separate New York filing status follows federal joint or separate filing status
• 20 NYCRR 151.10(b)(1) - federal rules for joint-return eligibility also govern New York joint returns
• 20 NYCRR 290.2(a) - State personal income tax rules apply in full to the New York City personal income tax
• 26 U.S.C. § 6013(a) - federal joint return provision for husband and wife
• 1 U.S.C. § 7 (Defense of Marriage Act, Pub. L. 104-199) - defines "marriage" and "spouse" for federal purposes as opposite-sex only

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_3i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-06(3)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. I050208B

On February 8, 2005, a Petition for Advisory Opinion was received from Martin FarachColton, 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, Martin Farach-Colton, 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 2003. Petitioner and
his partner are both residents of New York City.
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.

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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 290.2(a) of the Regulations provides, in part:
The rules and regulations of the [Department of Taxation and Finance]
promulgated with respect to the taxes imposed by article 22 of the Tax Law and
contained in Subchapter A of this Chapter, together with the Procedural Regulations . . .
shall be applicable, in their entirety, to the taxes imposed pursuant to the authority of
article 30 of the Tax Law by the City of New York, and such rules and regulations of the
[Department of Taxation and Finance] shall apply to the taxes imposed pursuant to the
authority of article 30 in the same manner and with the same full force and effect as if
such rules and regulations had been incorporated in full in this Subchapter and as if the
language thereof had expressly referred to the New York City personal income tax on
residents imposed pursuant to the authority of such article 30 except where inconsistent

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April 4, 2006

with or not relevant to such article 30 or inconsistent with the provisions of this
Subchapter or otherwise expressly provided for in this Subchapter.
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, enacted
September 21, 1996, provides:
Definition of “marriage” and “spouse”
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. Pursuant to section 290.2(a) of the Regulations, the rules and regulations applicable
to the New York State personal income tax are applicable to the New York City personal income
tax.
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.

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Income Tax
April 4, 2006

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 or New York City 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.