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    February 04, 2009

    Gays -- still criminalized

    Posted by: Andoni

    Loving gay couple

    If you thought the Supreme Court decision declaring the anti-sodomy laws unconstitutional ended the criminalization of gays for simply loving another person, think again.

    For gays in relationships, here is something not very pleasant to think about, especially now when tax problems are haunting a number of high profile public officials. Married straights can legally pass an unlimited amount of money, financial help, assets, benefits, services, etc. from one partner to another. Gay couples, however, cannot. Gay couples (and because the federal government does not recognize such marriages, even gays married in MA) can only pass $11,000  worth of cash, financial support, benefits, etc. from one partner to the other. Anything more than that is a taxable event (either as a gift tax on the donor or income tax on the recipient). And if you don't pay the taxes, it's a crime.

    So the simple act of loving another person and doing for them what any straight married person would do for their partner can make you a criminal.

    This is especially pertinent in these hard times when one partner may be totally supporting the other.

    In a heterosexual marriage where one partner stays home and is supported by the partner who works, there is no tax problem. Such a situation can easily produce more than $11,000 worth of benefits moving from the working partner to the non working spouse. The value of mortgage or rent payments, food, car, insurance, clothes, utilities, etc. can easily surpass $11,000. Gay couples, however, in the exact same scenario, are breaking the law by taking care of their partner and not paying taxes on those benefits.

    Is this fair? Absolutely not! But it's true.

    There is a striking parallel here to the situation of old when in some states heterosexual sodomy was legal, but gay sodomy was not.

    This potential tax problem doesn't only occur with stay at home partners. It can also happen when both spouses begin a relationship sharing expenses equally, but then one gets sick or loses a job.

    Would any prosecutor or an IRS agent pursue gay couples for this type of tax violation or am I describing a non problem? Well for most of us the sodomy laws were non problems as well, unless of course you had an overzealous prosecutor who wanted to make a name for himself or score a political point. And at a time when government appointees are getting extra tax compliance scrutiny, it may only be a matter of time before a gay appointee faces this situation.

    The basic problem, just as with the sodomy laws, is that anyone at any time can bring this infraction up to use against you.

    A second problem is that this is not good for the psyche. Knowing that society's rules say that when you form a family and do the same loving, supportive things that a "recognized" married couple does, but your loving actions are illegal, this is not a great feeling. In fact, it's a terribly depressing feeling.

    For the most part, breaking tax laws won't get you jail time, you simply have to pay the penalties and back taxes. But, just like after a plea bargain for a sodomy solicitation charge, it sure can short circuit a promising career in a hurry -- just ask Tom Daschle.

    Do any of Obama's gay appointees have the type of tax problem I describe? I don't know. But the very fact that some schmuck has the ability to use this unfair part of the tax law against any one of us at any time should give all of us pause. In fact, it should give us motivation to fix this problem fast.

    This tax predicament is just another good reason why our relationships should be recognized at the federal level as soon as possible. And if we can't have that, Congress should pass a targeted bill that addresses this couples' issue in the tax code. The best solution, however, is gaining the 1100+ federal benefits that opposite sex couples have all in one bill, not 1100 separate bills.

    No gay couple that I know pays gift taxes or income taxes on net transfers of money or financial benefit from one partner to another. We are all potentially vulnerable at any moment if someone wants to make an issue of it. Just as the sodomy laws used to hang over our heads, these tax laws are also waiting to be used against us. We should move to fix the situation as soon as possible.



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    1. stevew on Feb 4, 2009 12:02:58 PM:

      I don't have a particular comment, other than to say that this is an excellent article. I'm going to bookmark it.

      I think the $11,000 figure is indexed for inflation and changes each year, I believe the amount for 2009 has increased to $13,000. See Section 3.30 of this document under the heading "Annual Exclusion for Gifts": http://www.irs.gov/irb/2008-45_IRB/ar14.html

    1. JY452331 on Feb 5, 2009 8:23:58 AM:

      I do hope some smuck tries to torpedo one of Obama's LGBT appointees on this tax issue. They maythink it will help their cause, but the publicity would definitely rally people to our side. The public and Congress would see the inequality at play and see how unfair it is. Congress may then do something to fix it. So, go ahead Repubs, try to highlite something like this and it will backfire.

    1. idunno on Feb 6, 2009 4:50:53 PM:

      A lot of people live together where one supports the other. I have never heard of the supported one getting into problems with the IRS.

      I think Chris is still safe supporting his Brazillian stallion.

      Any tax experts out there that may know more?

    1. Redtube on Feb 25, 2009 9:09:53 AM:


    1. Darrin Mish on Sep 1, 2009 7:10:40 PM:

      You've raised some excellent points that I've never considered before. The government can more easily control dissent or a minority population thru the use of the IRS rather than bothering with criminal prosecution. I must admit I had never considered the ramifications of homosexual couples and gift and estate taxes.

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