Although New York does not yet permit same-sex marriages,1 it does recognize same-sex marriages entered into outside New York, in connection with certain legal rights (i.e., divorce, adoption and child custody matters).2 With respect to New York taxes, however, same-sex married couples are not treated equivalently to opposite-sex married couples. Most notably, same-sex married couples are unable to file a joint personal income tax return, and as a result, may have a higher burden of tax than their opposite-sex counterparts.
As explained in a recent Advisory Opinion issued by the New York State Department of Taxation and Finance, the primary reason for this disparate treatment is that New York’s tax laws are based primarily on federal tax laws, and for federal tax law purposes, same-sex marriages are not recognized.3 Unless and until federal legislation is enacted that eliminates the nonrecognition of same-sex marriages for federal tax purposes, a state law change is necessary.
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