- The Washington Times - Wednesday, February 24, 2010


The recent deliberate crash of an airplane into the Internal Revenue Service building in Austin, Texas (“Suicide pilot hits Texas IRS office,” Nation, Friday) once again raises the specter of IRS abuse. However, an even more sinister and pervasive abuse by the IRS is taking place: the intentional twisting or outright violation of existing law to achieve a result the agency desires.

As a tax attorney and former IRS agent, I think the outstanding example of this is the IRS’ refusal to accept joint tax returns from legally married same-sex couples. Those are couples who were married in states that recognize same-sex marriage and made it legal there.

This IRS ban violates two amendments to the U.S. Constitution. First, it violates the 10th Amendment, which gives the states the right to make their own marriage laws. For more than 200 years, the federal government has recognized as legal any marriage a state recognizes as legal. That is still the law. Therefore, the marriage of a same-sex couple in a state that recognizes same-sex marriage must always be recognized by the federal government. As a division of the federal government, the IRS is also bound to recognize such marriages and allow such couples to file jointly if they so wish.

The ban also violates the Fifth Amendment, which disallows the taking of property in the absence of due process. By not allowing a legally married same-sex couple to file a joint return and forcing the couple to file as two singles, the IRS is forcing them to pay more taxes than they should, in effect taking their money without due process.

The only defense the IRS has to this practice is the Defense of Marriage Act. But a legislative act cannot defeat a constitutional right. Moreover, the Defense of Marriage Act is not part of the tax code, nor does it mention taxes.

Finally, the IRS ban violates all notions of equal justice as it treats one class of taxpayers (heterosexual married couples) differently than it does another (same-sex married couples). The IRS may claim the 16th Amendment gives it the authority to ban joint returns by legally married same-sex couples, but this claim would be wrong. The 16th Amendment gives Congress the authority to tax income at any rates it desires, nothing more. If Congress passed a law saying only white, male-female married couples could file joint returns, it would be unconstitutional on its face. The current ban on joint returns from legally married same-sex couples is no different.


West Hills, Calif.

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