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    February 26, 2009

    Stimulus bill discriminates against gays

    Posted by: Andoni

    Discrimination

    We are a gay family. I'm the breadwinner and my partner is a full time student. His tuition is one of the biggest items in our family budget, and it certainly is a drag in these tough economic times. So you can imagine my elation when I heard President Obama describe the $2500 tax credit in the American Recovery and Reinvestment Act for the purpose of helping families offset the cost of tuition for education.

    Then I started looking into this. I contacted my accountant, my Congressman and various gay organizations to see exactly how my family could participate in this provision of the stimulus bill. The answer is, we can't.

    It appears that the definition of family in this bill is not defined broadly enough to include LGBT families. Without a broader definition of family, the tax credit would have to claimed via the normal mechanism of filing for it on the1040 federal income tax return form. But by law, our relationship is not recognized by the federal government, we cannot file jointly and I cannot claim him as a dependent, even though he really is. This #%@##!

    It isn't as though it's impossible to include gay families in legislation. After 9-11, the fund that was set up to re-imburse families for their loss in the Twin Towers collapse was written broad enough so that partners of gays could also be eligible for the money. Congress knows how to do this. Why didn't any of our Democratic friends in Congress or our LGBT organizations think of gay families in the stimulus bill? What are all those lobbyists for if not to protect our interests as laws are being made?

    Of course the fastest and most efficient way to get equal treatment for our families is for the federal government to recognize our marriages and civil unions.

    I've written a letter to President Obama asking him how my family can participate in the $2500 tax credit for education. I'll keep you posted if I get an anwer.

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    Comments

    1. stevew on Feb 26, 2009 11:33:05 AM:

      Tax professionals should read this article (PDF) about "The Unintended Tax Advantages of Gay Marriage." It focuses on the disconnect between disregarding marriage at the federal level (DOMA), including anti-abuse related party rules, and legal rights given at the state level, especially in California, which is a community property state. The article is pretty complicated, but it offers food for thought for tax planners.

      I expect many high-income California same-sex spouses will attempt some of the strategies mentioned in the article. There will be litigation with the IRS. Conservative members of Congress will fume and rant and try to change the law to recognize the marriages of same-sex couples for purposes of imposing the negative tax consequences of marriage, but not the positive tax consequences of marriage. If they succeed, that will then lead to a constitutional Equal Protection case. And even if they don't succeed, the resulting debate will be good for advocates of equality.

    1. Tim on Feb 26, 2009 2:35:03 PM:

      Kayne West said it best, "Barak Obama hates gay people"

    1. Adria on Feb 26, 2009 5:33:47 PM:

      In addition, the Stimulus Bill-The American Recovery and Reinvestment Act- discrminates against gay families with the new COBRA subsidy. As part of the stimulus companies are now required to offer a subsidy of 65% of COBRA premiums for anyone involuntary terminated since Sept 1, 2008 through Jan 1, 2010. Unfortunately, COBRA is a federal law and thus does not recognize domestic partners or same sex spouses in states that recognize those marriages. If the dependent is not recognized under IRS rules as an eligible dependent the employer does not have to subsidize the domestic partner.

    1. Chuck on Feb 27, 2009 4:18:58 AM:

      I feel your pain, Andoni. And, I am cursing as loudly and angrily as you are. Believe me.

      Like you, I am the breadwinner in my family. Because American Immigration refused to issue a student visa for my partner to come here to study on three separate occasions over the past six years, I have been obliged to set up a second home on foreign soil in order to be with my family for a part of the year. And, as you indicated in your blog, it certainly is a drag in these tough economic times

      Like you, our relationship is also not recognized by the federal government, so we cannot file jointly and I cannot claim him as a dependent either, even though he really is.

      First there was the Donnie McClurkin fiasco. Dumb boo boo, or a slap in the face?

      Then there was the Rick Warren brouhaha. Another stupid fuck-up...or a slap in the face?

      Mr. Obama then shelved DADT until 2010 after promising the LGBT community that he would press for it's elimination. A simple flip-flop...or a another slap in the face?

      And then comes this revoltin' development. Like gay families don't have the same economic woes and financial problems like the rest of the citizenry? Does Mr. Obama think that we are somehow immune to them?

      We lost money in the stock market, just like everyone else.

      We're losing our jobs, just like everyone else.

      We are losing our company paid medical insurance and pensions, just like everyone else.

      We have problems with paying out mortgages and are losing our homes, just like everyone else.

      We are losing our businesses, just like everyone else.

      We have medical expenses, just like everyone else.

      And, we pay our taxes, just like everyone else.

      And, in many cases, even more because of the unfavorable tax treatment we receive as second-class American Citizens.

      Another stupid, unthinking blunder on Mr. Obama's behalf...or did we just get tossed under the bus again?

    1. Hawyer on Feb 28, 2009 12:17:19 PM:

      Andoni - not to pry, but you should be able to file as "head of household" which allows you to claim dependents.

    1. Hawyer on Feb 28, 2009 12:18:55 PM:

      Andoni, not to pry, but you should be able to file as "head of household" which allows you to claim dependents.

    1. Sebbe on Feb 28, 2009 4:04:13 PM:

      @Hawyer - His partner would not qualify as a "qualifying person" unfortunately under current federal law. A qualifying person must be either a "qualifying child" or "qualifying relative" in order to file as head of household. I presume this is not the case. It is a common misconception that the person need only be a "dependent", again unfortunately for the time being.

      http://www.irs.gov/publications/p501/index.html

      ** Please note I am not a tax attorney and this comment should not be construed as legal advice or opinion. For more information you should contact a tax attorney/tax professional.**

    1. Andoni on Feb 28, 2009 4:13:51 PM:

      Sebbe is correct, because I have pursued this angle in many ways. The answer is I can't file jointly and I can't claim him as a dependent --- that is, if I want to remain on the legal side of filing a tax return.

      This is patently unfair and I would bet that a majority of Americans would agree, if they could listen to our stories.

    1. Sebbe on Feb 28, 2009 5:34:12 PM:

      @andoni - I found your post through Chuck. We are frienemies on queerty. LOL you know I like you Chuck!! Most times we agree and sometimes we feud. I am only in my late 20s and have already been in a situation similar to Chuck in regards to immigration. My ex was from Europe. EUROPE. I just hope that one day soon, the ideologies regarding these issues will stop and our legislators will look at these things logically. I know, logic and the government, don't laugh. I'm starting to gain hope as my generation is getting a little older and will one day assume power. MY POINT is, we should not have to wait another day and we have to keep pushing. I wish everyone here the best of luck and hope you can all find peace and love. Not just emotionally, but in these trying times, financially as well.

    1. Sebbe on Feb 28, 2009 5:36:41 PM:

      I apologize for the poor sentence structure and any possible grammar or spelling issues. I'm typing on a mobile and its hard to view this page while writing a comment. Just wanted to beat you to the line Chuck. LOL

    1. Hawyer on Feb 28, 2009 5:52:44 PM:

      Sebbe / Andoni

      I am verklempt - my partner is disabled and has no income but SSDI. We are planning to form a household and I had assumed that I would at least be able to file "head of household". I think I will just not file any return next year. How long would it take the IRS to put me in jail ??? &@**%^

    1. Sebbe on Feb 28, 2009 6:33:03 PM:

      @Hawyer - I wouldn't recommend it. Believe me when I say you are not alone in thinking that would be the case. Many (if not most) gays believe that is the case until they are in the situation and try I also feel that many straight (and allys) think it is as simple as that for us.

      You may find some relief at the state level in regards to taxes (depending on where you live of course and if your relationship is recognized in that state).

      There is some minor relief that could be obtained through the formation of different legal documents. Generally, this relief will not be greater than the deduction you are to be afforded when you take into account the complex legalities (hence bills) and tax codes (accountants). So financially it is often not worth it (even in the long run)and (specifically if you yourself are working and not on any other assistance).

      There have been instances where one has been successful in adopting their partner (many states do not have upper age limits), however this is fraud in regards to the court (or whomever handles adoptions in your jurisdiction) and could turn into a criminal matter and to the IRS as it is not the true nature of your relationship if the adoption was obtained fraudulently.

      Unfortunately, they pretty much have their bases covered in preventing us legally from gaining any relief. Their is very little we can do until the laws are changed. More so if you live in a state where your relationship is not recognized.

      Like I said above, this is not my particular area of legal expertise, but I have done a significant amount of investigation into their area for friends and family. I myself am not presently in a situation where it would make a difference.

      I still urge if you have questions to contact a local attorney in your area. Many (large and small firms alike) will meet with you as a free consultation to see if they can help. If you do, and there is one in your area, please seek out either an lgbt attorney (or ally) or a tax specialist (you should be looking for someone whom in addition to their JD also has an LLM in taxation.

      I personally volunteer at a local lgbt center, and like I said do not deal with these specific legal questions, but am there to help in other ways I am able to.

    1. Sebbe on Feb 28, 2009 6:42:38 PM:

      @Andoni - I am new to this blog and did not realize your background until just now when I did a little poking around. I do not presume to have any better advice than yourself. I am still just a new, young lawyer. Thank you for working on this site. I find it very well done so far.

      Veritas - Sebbe

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    1. Herve leger on May 11, 2011 4:46:11 AM:

      Andoni - not to pry, but you should be able to file as "head of household" which allows you to claim dependents.

    1. chrisitian louboutin on May 25, 2011 3:15:10 AM:

      I personally volunteer at a local lgbt center, and like I said do not deal with these specific legal questions, but am there to help in other ways I am able to.

    1. Herve leger on Aug 29, 2011 8:47:35 PM:

      Another stupid, unthinking blunder on Mr. Obama's behalf...or did we just get tossed under the bus again?

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