Virginia Income Tax Treatment of Same-Sex Marriage

On November 8, 2013 the Virginia Department of Taxation issued tax bulletin 13-13 which informs same-sex spouses that they will be required to file their Virginia income tax returns as single indiviuals.

Bulletin 13-13 states the following:

“On September 16, 2013, the Internal Revenue Service published Revenue Ruling 2013-17, 2013-38 I.R.B. 201, which provides that same-sex couples will be treated as married for federal tax purposes if they were legally married in a state that recognizes same-sex marriage, regardless of whether such couples lives in a jurisdiction that recognizes same-sex marriage. This ruling was issued in response to the recent U.S. Supreme Court decision in U.S. v. Windsor, 133 S. Ct. 2675 (2013).

Because Virginia’s income tax law generally conforms to federal income tax law, the marital status of a couple for Virginia income tax purposes is historically based on whether the couple is considered married for federal income tax purposes. However, Article I, § 15-A of the Constitution of Virginia and Va. Code § 20-45.2 specifically prohibit the recognition of any marriage in Virginia other than a marriage between one man and one woman. To determine the impact of Revenue Ruling 2013-17 on Virginia income tax returns, the Virginia Department of Taxation (“the Department”) sought legal advice and was advised that Article I, § 15-A of the Constitution of Virginia and Va. Code § 20-45.2 require Virginia to deconform from the federal income tax treatment of same-sex marriage.

Accordingly, same-sex married couples who file federal income tax returns jointly, or as married taxpayers filing separately, will be required to file their Virginia income tax returns as single individuals. This policy may potentially impact a number of items on Virginia income tax returns, including the following:

• Filing status,
• Above-the-line deductions,
• Standard and itemized deductions,
• Personal and dependency exemptions, and
• Virginia tax credits for low-income taxpayers.”

Posted by Fairfax Virginia Attorney, Sheri R. Abrams, www.sheriabrams.com