Virginia Same-Sex Joint Tax Filing: Cuccinelli's Last Act and Herring's First

 
 
January 23, 2014

On January 10, his last weekday in office, Virginia Attorney General Ken Cuccinelli (R) issued an official advisory opinion (PDF) that the Virginia Department of Taxation could not allow same-sex couples to file joint tax returns. His opinion rested on two points: (1) only the Legislature, not the Governor, can change Virginia code § 58.1-324, which uses the terms “husband” and “wife” in authorizing joint tax returns; and (2) the 2006 amendment to the Virginia Constitution prohibiting the state from recognizing legal status for relationships other than marriage between one man and one woman. Cuccinelli's opinion was gratuitous as the Virginia Department of Taxation had already ruled that same-sex couples could not file joint tax returns, giving guidance that they use pro forma federal single returns to prepare state single returns.

The ban is currently being challenged in court. Yesterday, a spokesman for newly elected Attorney General Mark Herring (D) e-mailed the Associated Press to say that he will not defend it in court:

"After a thorough legal review of the matter, Attorney General Herring has concluded that Virginia's current ban is in violation of the U.S. constitution and he will not defend it," spokesman Michael Kelly wrote.

Herring, a Democrat who campaigned in part on marriage equality, was to file a brief Thursday with the federal court in Norfolk, where one of the lawsuits is being heard, as notification of the state's change in position in the case, Kelly said.

The state's shift comes on the heels of court rulings in which federal judges struck down gay marriage bans in Utah and Oklahoma.

While the e-mail does not directly discuss tax issues, it suggests that the Virginia government’s official position is now that non-recognition of same-sex marriage violates the U.S. Constitution. The constitutional amendment is still on the books and will be until a court strikes it down or voters repeal it, but I’d be curious to see if the state would process a joint same-sex tax return. I’m e-mailing the Virginia Department of Taxation today.

The 2006 constitutional amendment was approved by voters 57 percent to 43 percent, but recent polls suggest that a majority of Virginians now support same-sex marriage.

For what other states have ruled on joint tax return filing by married gay couples, see our report here.

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