Hegemonic Marriage: The Collision of "Transformative" Same-Sex Marriage with Reactionary Tax Law

Before there was a culture war in the United States over same-sex marriage, there was a battle between opponents and proponents of same-sex marriage within the LGBTQ+ community. Some within the LGBTQ+ community opposed same-sex marriage because of the long patriarchal history of marriage and the more consequential need to bridge the economic and privilege gap between the married and the unmarried. On the other hand, LGBTQ+ proponents of same-sex marriage saw marriage as a civil rights issue because of the central importance of marriage in American society. They sensed a profound wrong in the denial of the benefits of marriage to same-sex couples when those couples carried on lives no different from their heterosexual counterparts, save for the legal recognition of their relationships as a “marriage.” Proponents also lauded the transformative potential of same-sex marriage, contending that it could upset the patriarchal nature of marriage and help to refashion marriage into something new and better. Opponents, of course, feared the hegemony of heterosexual marriage in the United States and argued that same-sex marriage would not transform American society at all. This essay looks back at that debate through the lens of the federal tax definition of “marriage” before and after the U.S. Supreme Court’s decisions in United States v. Windsor and Obergefell v. Hodges. These two decisions brought legal recognition of same-sex marriage to the federal and state realms, respectively. The question in these early years following the advent of same-sex marriage across the United States is whether the promised transformative potential of same-sex marriage has begun to be realized. In the realm of federal tax law—which is the situs of perhaps the most intimate and sustained connection that citizens have with the federal government—the answer is at this point, unfortunately, no. After opening the door to a broader array of legally recognized relationships before Windsor, the Internal Revenue Service reversed course and firmly shut the door on recognizing any relationship not denominated “marriage” in the wake of that decision. At first, it was thought that the IRS reversed its position in order to prod states that had adopted second-class civil union or domestic partnership regimes to recognize same-sex marriage—and this did, indeed, happen in the two years that separated the Windsor and Obergefell decisions. But after Obergefell, when same-sex marriage began to be recognized across the United States, the IRS even more firmly closed the door to recognizing alternative relationship statuses, showing that its original move was reactionary in character and stymieing the transformative potential of same-sex marriage in this influential area of the law. In conclusion, the essay will explore the lessons to be learned from the collision between faith in the ability to disrupt and overturn hierarchies and the reality of the power of entrenched societal institutions such as marriage

Bringing sexual orientation and gender identity into the tax classroom

A recent piece in the Journal of Legal Education analyzing student surveys by the Law School Admission Council reports that, despite improvement in the past decade, LGBT students still experience a law school climate in which they encounter substantial discrimination both inside and outside the classroom. Included among the list of best practices to improve the law school climate for LGBT students was a recommendation to incorporate discussions of LGBT issues in non-LGBT courses, such as tax. In a timely coincidence, the Section on Sexual Orientation and Gender Identity Issues held a day-long program at the 2009 AALS annual meeting to consider LGBT issues across the law school curriculum. I prepared this essay as a hand-out for a break-out session on tax during that day-long program to help other tax teachers think about how they might incorporate LGBT issues into their tax classes. \ud \ud In this essay, I identify several areas likely to be covered in tax courses in which a discussion of LGBT issues is relevant. The general areas of the tax curriculum that I have identified for inclusion are: fringe benefits, health insurance, attribution rules, medical expenses, property transfers, and income splitting. In each of these areas, I first discuss the general tax rules that serve as the backdrop for the discussion. Next, I recount a narrative that - in a concrete, personalized setting - raises the question of how these general tax rules apply to LGBT individuals. I then explain how the rules apply to the situation face

From the Sidelines: A Deconstructionist View of Circular 230

Over the past several months, the new written tax advice rules in Circular 230 have engendered a great deal of debate. On one side, tax practitioners have repeatedly voiced their frustration in interpreting the new rules along with their fears that the rules may have a far-reaching and radical impact on everyday tax practice. On the other side, the government has attempted to soothe practitioners’ fears while at the same time insisting upon a generally broad interpretation of the new rules. In this short essay, I provide an outsider’s perspective of this debate over the meaning of the new written tax advice rules. Viewing the action from the sidelines, I maintain that, in this debate, we are actually watching deconstruction in action. After providing a bit of background on the deconstructionist concept of the liberation of the text from the author, I assert that we are witnessing the free play of the text of Circular 230 following its liberation from its government authors. While I explain that this is quite a normal and natural process, I do express my sympathy for those who must live with the uncertainties inherent in the free play of a text that governs one’s own conduct

Sistem Informasi Pengolahan Data Laporan Arus Kas Berbasis Website pada CV Sari Agung Perkasa (SAP) Ternate

CV Sari agung perkasa merupakan salah satu badan USAha yang mempunyai cabang Perusahaannya di kota ternate yang bergerak dalam bidang penjualan karya seni (kaligrafi), system pengolahan data laporan kas pada CV sari agung tersebut masih bersifat konvesional, yaitu pencatatan data penerimaan dan pengeluaran masih di lakukan secara manual dan proses penyampaian pelaporanpun yang di berikan kepada pimpinan Perusahaan, harus mengirim pelaporan tersebut ke pimpinan Perusahaan yang berada di luar kota ternate, sehingga dianggap kurang efektif dan efisien. Penilitian ini dilakukan pada CV Sari Agung Perkasa Cabang (SAP) Ternate bertujuan untuk merancang suatu aplikasi untuk mengolah data kas penerimaan dan pengeluaran berbasis website, metode pengumpulan data menggunakan observasi, wawancara. Model pengembangan sistem yang digunakan model waterfall dengan pendekatan rancangan diagram flow data (DFD), bahasa pemrograman yang digunakan PHP dan MySql sebagai Databasenya dan model pengujian sistem menggunakan metode Blackbox. Dengan adanya sistem ini diharapkan dapat mempermudah dalam mengelola data kas serat mempermudah prose penyampaian laporan kepada pimpinan yang berada diluar kota ternat

A Tax Crit Identity Crisis? Or Tax Expenditure Analysis, Deconstruction, and the Rethinking of a Collective Identity

Critical tax theory, much like its non-tax critical counterparts, has been consistently marginalized by mainstream tax academics. To date, tax crits have accepted and acquiesced in this marginalization. In this article, I question the idea that tax crits are outsiders as well as the notion that critical tax theory is a marginal form of tax policy literature. My primary purpose in questioning this conventional wisdom is to get tax crits to think critically about the collective identity of the critical tax movement. I question the outsider status of critical tax theory by essentially turning the mainstream into the marginal (or the marginal into the mainstream, depending upon your perspective). I accomplish this by reconceptualizing a quite mainstream tax concept - tax expenditure analysis - as an application of critical (and, more particularly, deconstructionist) techniques to the Internal Revenue Code. Once the mainstream (i.e., tax expenditure analysis) has been recast as the marginal (i.e., deconstructionist analysis), the distinction between the two essentially deconstructs itself, calling into question the justification for attaching significant weight to the distinction between the mainstream and the marginal. This opens the way for tax crits to think critically about their marginality and what role it should play in the collective identity of the critical tax movement

The house of Windsor: Accentuating the heteronormativity in the tax incentives for procreation

Following the Supreme Court’s decision in United States v. Windsor, many seem to believe that the fight for marriage equality at the federal level is over and that any remaining work in this area is at the state level. Belying this conventional wisdom, this Article plumbs the gap between the promise of Windsor and the reality that heteronormativity has been one of the core building blocks of the federal tax system. Eradicating embedded heteronormativity will take far more than a single court decision (or even revenue ruling); it will take years of work uncovering the subtle ways in which heteronormativity pervades the federal tax laws and of identifying means of eliminating that heteronormativity. To further this work and in keeping with the theme of this symposium issue, Compensated Surrogacy in the Age of Windsor, this Article explores the unremitting heteronormativity of the federal tax incentives for procreation as they apply to compensated surrogacy, which is the only practical option for gay couples wishing to procreate

Big (Gay) Love: Has the IRS Legalized Polygamy?

Within days, a federal judge in Utah made news by loosening that state’s criminal prohibition against polygamy and the Attorney General of North Dakota made news by opining that a party to a same-sex marriage could enter into a different-sex marriage in that state without first obtaining a divorce or annulment. Both of these opinions raised the specter of legalized plural marriage. What discussions of these opinions missed, however, is the possibility that the IRS might already have legalized plural marriage in the wake of the U.S. Supreme Court’s decision last June in United States v. Windsor, which struck down section three of the federal Defense of Marriage Act (DOMA).\ud \ud In exploring that possibility, this essay continues my work analyzing the shortcomings of the IRS’s implementation of the Windsor decision. The Secretary of the Treasury promised that IRS guidance would provide same-sex couples with “certainty and clear, coherent tax-filing guidance.” To the contrary, I have explained that the IRS’s guidance provides no more than the same veneer of clarity that DOMA did, because it leaves important questions unanswered, lays traps for the unwary, creates inequities, and entails unfortunate (and, hopefully, unintended) consequences. In this essay, I extend that analysis by explaining how ambiguity in the IRS’s guidance may also have unintentionally opened the door to recognizing plural marriage for federal tax purposes

Introduction to Controversies in Tax Law: A Matter of Perspective

This volume presents a new approach to today’s tax controversies, reflecting that debates about taxation often turn on the differing worldviews of the debate participants. For instance, a central tension in the academic tax literature — which is filtering into everyday discussions of tax law — exists between “mainstream” and “critical” tax theorists. This tension results from a clash of perspectives: Is taxation primarily a matter of social science or social justice? Should tax policy debates be grounded in economics or in critical race, feminist, queer, and other outsider perspectives? To capture and interrogate what often seems like a chasm between the different sides of tax debates, this collection comprises a series of pairs of essays. Each pair approaches a single area of controversy from two different perspectives — with one essay usually taking a “mainstream” perspective and the other a “critical” perspective. In writing their contributions, the authors read and incorporated reactions to each other’s essays, and paid specific attention to the influence of perspective on both the area of controversy and their contributions to the debate. With contributions from leading mainstream and critical tax scholars, this volume takes the first step toward bridging the gap between these differing perspectives on tax law and policy

Taxing Civil Rights Gains

This Article is divided into four parts. In Part I, the nature of the levy that the DOMAs impose on same-sex couples is explained. In Part II, how this levy can be classified as a tax is explained. In Part III, the federal- and state-level ramifications of classifying the levy that the DOMAs impose as a tax are discussed. Finally, brief concluding remarks are provided that discuss how this Article might pave the way for making similar arguments with respect to other nontraditional families and, concomitantly, how it demonstrates the transformative potential of same-sex marriage