Prying Open the Closet Door: The Defense of Marriage Act and Tax Treaties

Anthony C. Infanti, University of Pittsburgh School of Law

Abstract

In response to a letter from a clearly alarmed conservative organization, the IRS recently reaffirmed the fact that same-sex couples who are married under state law are ineligible to file a joint federal income tax return. In making this assertion (in a letter that the organization later published on the Internet), the IRS relied on the Defense of Marriage Act (DOMA), which defines marriage for purposes of federal law as a union of a man and a woman. In this article, I consider whether the IRS' statement to that organization will hold true when viewed from a wider, international perspective.

The United States is not the only country where same-sex couples are seeking (and have been granted) the right to marry. Same-sex couples have already been granted the right to marry in Canada, the Netherlands, and Belgium, and it appears that they will soon be granted the right to marry in Spain. Each of these four countries has concluded an income tax treaty with the United States. And, as is common, each of these income tax treaties contains a nondiscrimination article that prohibits the United States from taxing citizens of the other country in an other or more burdensome fashion than it taxes its own citizens in the same circumstances. The heart of this article consists of a discussion of the relationship between the nondiscrimination provisions in these treaties and DOMA. I conclude that a tenable argument can be made that DOMA should not be given priority over the treaty provisions and that, as a result, the IRS (and, in many cases, state and local tax authorities) should be required to recognize the marriages of resident alien same-sex couples who are citizens of Belgium, Canada, the Netherlands (or, soon, Spain).