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IRS tax ruling part of same-sex union debate

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POSTED June 4, 2010 2:55 a.m.
The Internal Revenue Service has now created another marriage penalty to the benefit of California’s registered domestic partners - primarily same-sex couples.

 The IRS is recognizing the state’s community property law. As a result, that means any income earned by registered same-sex partners in California is being recognized by the IRS as community property income.

That is significant when it comes to federal income taxes.    
There is no requirement that same-sex couples registered in California to file as married. In fact, they can’t. But by opting to split community property income as now allowed by the IRS more than a few domestic partners will end up with a tax break. That will occur when one has a considerably large income and the other has an insignificant amount or none.

California law allows people to register as domestic partners if they are of the same sex or one is at least 62 years of age.

The ruling - like all made by the IRS - isn’t clear cut. It doesn’t address same-sex couples that married during the brief period it was legal to do so in California. It also cuts both ways. If someone is a registered domestic partner in California and they owe the IRS money but don’t make enough for the tax agency to make a “reasonable collection” the IRS can look at the other partner’s income to determine the taxpayer’s ability to pay.

Tax consequences aside, it does underscore what many have argued for years in the ongoing debate over same-sex marriage in the Golden State. California’s domestic partnership laws almost - not quite - give same-sex couples that register with the state the same rights as married couples.

Same-sex couples can legally adopt children. They can enter into agreements such a buying a home and have it treated as community property. And with the tweaking of some laws - such as those involving medical decisions and health care - those who have registered as domestic partners will essentially have the same rights as a married couple.

The problem is everyone is stuck on the word “marriage.”

There is no doubt that a future state ballot measure will again seek to legalize same-sex marriage.

Many proponents believe same-sex partners who commit to a legal arrangement can’t be equal to those who are married without the union being called a marriage.

Yet there is a huge emotional attachment to marriage that has more to do with religious beliefs than it does with the agenda of the government which includes setting standards for commerce, medical care, taxes, property rights, legal obligations, and such.

The more strident opponents of Proposition 8 that restricted marriage in California to opposite set couples did a chain saw act on financial backers of the measure that were either Catholic or Mormon. They mocked their religious beliefs.

At the same time many backers of Proposition 8 felt strongly that the term “marriage” that has strong religious implications and centuries of tradition should not be used by the state to describe same-sex couples entering into a legally recognized partnership.

Both sides have a strong tendency to embrace separation of church and state although the exact form that takes differs.

That is why the right way to approach the ongoing cultural skirmish is for proponents of equality to steer away from the term to marriage and pursue a ballot measure that essentially states “California will issue domestic partner licenses only to two individuals regardless whether they are same-sex or opposite sex.”

That settles the equality issue and it keeps religious values intact. Marriage, which has strong religious value attached to it, would be the province of organized religion or whatever other group chooses to use it for purposes that aren’t controlled by the government.

If a group of same-sex atheist or agnostics - they could be even opposite-sex for that matter - want to form an organization that performs non-state related ceremonies referred to as marriages they should feel free to do by their own rules just like churches do without interference from the government.

Give the term “domestic partnership” to the government and “marriage” to any non-government organization or individual that wishes to use it.

It ends the “in-your-face” aspect of the entire debate and forces people to answer whether they embrace basic American principles.
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