Will a marriage to a same-sex partner be recognized for New York State personal income tax purposes?

Plain-English summary

A petitioner asked the Department of Taxation and Finance whether a marriage to a same-sex partner would be recognized for New York State personal income tax purposes. The question arose because Governor David Paterson had issued a 2008 directive instructing all state agencies to recognize same-sex marriages. The petitioner wanted to know whether that directive meant the Tax Department would treat a same-sex marriage as a marriage for personal income tax purposes - things like marital status and filing status.

The Department concluded it would not. Under Tax Law § 607(a), terms used in the personal income tax provisions generally carry the same meaning they have for federal income tax purposes, unless a different meaning is clearly required. Section 607(b) goes further and specifically ties an individual's marital status to that person's marital status as established for federal income tax rate-setting purposes, and Tax Law § 651(b) ties New York filing status directly to federal filing status. In other words, New York's personal income tax law follows the federal determination of who is married and what filing status applies.

At the time of this opinion (May 2010), the federal Defense of Marriage Act meant the Internal Revenue Service did not recognize same-sex marriages for federal income tax purposes, including for filing a joint federal return. Because same-sex partners were not treated as married federally, the Department concluded that a marriage to a same-sex partner also would not be recognized for New York State personal income tax purposes - regardless of the Governor's 2008 directive on state agency recognition of same-sex marriages generally.

What this means for you

Same-sex married couples filing New York personal income tax returns (as of this 2010 opinion)

If you were in a same-sex marriage at the time of this opinion, the Department's position was that you could not be treated as married for New York personal income tax purposes - including for choosing a "married filing jointly" or "married filing separately" status - because federal law (the Defense of Marriage Act) did not recognize the marriage federally, and New York's Tax Law ties marital and filing status to the federal determination.

Accountants and tax professionals

This opinion illustrates how tightly New York's personal income tax marital-status and filing-status rules (Tax Law §§ 607(b) and 651(b)) are linked to the federal determination under the Internal Revenue Code. A state-agency policy directive - like Governor Paterson's 2008 directive - does not by itself change how the Tax Law treats marital or filing status; that status still follows the federal rule. Advisors should be aware this area of law changed substantially after 2010 (with later developments in same-sex marriage recognition), so this opinion reflects only the law and policy in effect when it was issued in May 2010.

Common questions

Q: Why didn't Governor Paterson's 2008 directive make a same-sex marriage count for New York income tax purposes?
A: Because the directive addressed state agency recognition generally, but the Tax Law's own rules (§§ 607(b) and 651(b)) specifically tie an individual's marital status and filing status to that person's status for federal income tax purposes - not to a separate state policy directive.

Q: Did the IRS recognize same-sex marriages for federal income tax purposes in 2010?
A: No. Under the federal Defense of Marriage Act, the IRS did not recognize same-sex marriages for federal income tax purposes, including for filing a joint federal return, at the time this opinion was issued.

Q: Does New York's personal income tax law define "marital status" and "filing status" on its own?
A: No. Tax Law § 607(a) generally borrows federal meanings for terms used in the personal income tax provisions, and §§ 607(b) and 651(b) specifically provide that marital status and filing status follow the federal determination.

Q: Does this opinion still reflect current New York law?
A: This opinion only reflects the law, regulations, and Department policy in effect as of its May 12, 2010 issue date; it does not address any later changes in the law governing recognition of same-sex marriages.

Citations and references

• Tax Law § 607(a) - terms in the personal income tax provisions generally carry their federal meaning unless a different meaning is clearly required
• Tax Law § 607(b) - an individual's marital status is the same as established for federal income tax rate-setting purposes
• Tax Law § 651(b) - an individual's New York filing status is determined by federal filing status
• Federal Defense of Marriage Act - basis for the IRS not recognizing same-sex marriages for federal income tax purposes, including joint filing, as of this opinion's issuance

Source

• Landing page: https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/income_ao_2010.htm
• Opinion: https://www.tax.ny.gov/pdf/advisory_opinions/income/a10_2i.pdf

Original ruling text

New York State Department of Taxation and Finance

TSB-A-10(2)I
Income Tax
May 12, 2010

Office of Counsel
Advisory Opinion Unit
STATE OF NEW YORK
COMMISSIONER OF TAXATION AND FINANCE
ADVISORY OPINION

PETITION NO. I090921A

On September 21, 2009 a Petition for Advisory Opinion was received from name and address redacted.
The petition asks whether marriage to a same-sex partner will be recognized for New York State
personal income tax purposes as a result of Governor David Paterson’s 2008 directive to all State Agencies
regarding same-sex marriage recognition.
We conclude that since marriage to a 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.
Analysis
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 purposes, unless a different meaning is
clearly required but such meaning shall be subject to exceptions or modifications prescribed 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 that 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 federal 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, the Internal Revenue Service does not recognize same-sex
marriages for federal income tax purposes, including for purposes of filing a joint return. Therefore, same-sex
partners of a same-sex marriage are not treated as married for federal income tax purposes.
Accordingly, a marriage to a same-sex partner will not be recognized for purposes of New York State
personal income tax.

DATED: May 12, 2010

NOTE:

/S/
Jonathan Pessen
Director of Advisory Opinions
Office of Counsel
An Advisory Opinion is issued at the request of a person or entity. It is limited to the
facts set forth therein and is binding on the Department only with respect to the person
or entity to whom it is issued and only if the person or entity fully and accurately
describes all relevant facts. An Advisory Opinion is based on the law, regulations, and
Department policies in effect as of the date the Opinion is issued or for the specific time
period at issue in the Opinion.