Illinois Civil Unions Partners Can’t File Joint Tax Returns

by Beverly A. Pekala on July 7, 2011

And so it begins. The Illinois Civil Unions law is about a month old and the disputes over how the law really works and what it really  means have already begun. 

 The Illinois Civil Unions law (known as the Illinois Religious Freedom Protection and Civil Union Act) says it “provides persons entering into a civil union with the obligations, responsibilities, protections, and benefits afforded or recognized by the law of Illinois to spouses.” (750 ILCS 75/5) Many argue that this law clearly states that partners should be treated like spouses. However, the Illinois Department of Revenue has provided us with their interpretation of what the civil unions law means in terms of filing tax returns, and the Department hasn’t made supporters of the civil unions law very happy. 

 The Illinois Department of Revenue has ruled that partners to an Illinois civil union are not allowed to file joint Illinois tax returns. Why? Blame it on the feds. There’s a federal law called the Defense of Marriage Act (DOMA) which says that marriage is between a man and a woman and does not allow joint returns to be filed by partners to a civil union. As a result, Illinois takes the same position and won’t permit the filing of joint tax returns by civil unions partners.    

 Civil unions laws and gay marriage laws are being litigated across the country for a variety of reasons, including issues regarding the disparties in benefits provided to opposite sex married couples versus to partners and same sex married couples. Partners to civil unions wish to enjoy the benefits of married couples and some laws, such as the Illinois civil unions law, arguably support that position.

 According to gay rights supporters, partners should legally enjoy the benefits of marriage and one such benefit is the right to file a joint tax return. While no one can dispute that opposite sex married couples are allowed to file joint tax returns, some also argue there may or may not be a benefit to filing joint tax returns. Technically there is no longer a “marriage tax penalty” but whether any couple enjoys a financial benefit to filing jointly or otherwise may depend upon the financial circumstances of each couple. 

 Regardless, gay rights supporters argue that partners should be allowed to file joint tax returns and that the Illinois civil unions law allows for partners to file joint tax returns based on the broad wording of the statute. The decision of the Illinois Department of Revenue will likely be clarified when a lawsuit is brought or perhaps legislatively. Until then, partners to an Illinois civil union cannot file joint tax returns in Illinois.

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