Below is a listing of the 25 states that DO NOT recognize same-sex marriage (or civil unions or domestic partnerships) and have issued some sort of guidance regarding reporting state income taxes for same-sex married couples.
- Five states allow same-sex taxpayers to file jointly (Colorado, Illinois, Missouri, Oregon, and Utah).
- Five states instruct same-sex taxpayers to allocate income to two single returns using state-provided schedule (Arizona, Kansas, North Dakota, Ohio, and Wisconsin).
- Twelve states instruct same-sex taxpayers to complete pro forma federal single tax returns and use that information for the state returns (Georgia, Idaho, Indiana, Kentucky, Louisiana, Michigan, Nebraska, North Carolina, Oklahoma, South Carolina, Virginia, and West Virginia). These "dummy" federal tax returns are not filed with federal authorities but used only for calculating state tax liability (Utah also issued guidance using this approach prior to the Dec. 2013 court decision permitting same-sex marriage in the state).
- One state (Alabama) instructs same-sex taxpayers to apportion income according to a ratio.
- Montana advises same-sex taxpayers not to file jointly but concedes that it has no way of verifying that information.
- Note that Illinois has passed legislation to recognize same sex marriage as of June 1, 2014, and treats couples as married if treated as married for Federal purposes.
- No guidance from Arkansas as of now. No IRC conformity, no same-sex marriage, highly likely must file as single or Head of Household (HOH).
Below are links to the specific state guidance:
- Alabama*** (file as single and attach first two pages of federal return when file Alabama returns)
- Colorado* - same sex couples may file as married for state tax purposes - SB 19 enacted.
- Idaho (and Dec. 2013 update and Feb. 2014 update - Idaho legislature passes bill banning joint returns for married same-sex couples) (include dummy federal single tax returns as part of paperwork for Idaho returns)
- Illinois*, ***** - recognizes as married if married for Federal purposes. Passed legislation to recognize same sex marriages after June 1, 2014. (If in Illinois civil unions, file as Single for federal and married for Illinois purposes.)
- Kentucky (separate credits and itemized deductions according to which spouse would benefit most) (Feb. 2014 update - Court rules Kentucky must recognize same-sex marriages from other states)
- Michigan**, *** - see MCL 203.311 (note on 3/21/14, federal judge ruled Michigan's ban on same-sex marriage is unconstitutional. The ruling is expected to be appealed.)
- Mississippi*** - does not conform to the Federal rules/IRS for filing status
- Missouri* - Governor's executive order allows same-sex couples to file as married for state tax purposes. Note that a lawsuit challenging the filing of Missouri married tax returns for same-sex couples was filed as noted in news articles on Jan. 9, 2014.
- North Carolina and directive
- North Dakota -and allocation form Schedule ND-1S
- Oklahoma - Note on Jan. 14, 2014, a federal judge struck down Oklahoma's ban on same-sex marriage, saying it violates the U.S. Constitution. The judge said, however, that same-sex marriage in Oklahoma will not start immediately and that the effect of the ruling will be stayed pending an appeal of his decision to a higher court.
- Oregon* - recognizes civil unions/registered domestic partnerships, same sex couples may file as married for state tax purposes
- Pennsylvania**, ***
- South Carolina (and Form instructions)
- West Virginia - file as single
- Virginia - Note on Jan. 10, 2014, the Virginia Attorney General wrote that allowing Virginia married tax returns for same-sex couples in Virginia would violate the Virginia Constitution, and on Jan. 23, 2014, announced that Virginia will not defend the State's Consitutional ban on same-sex marriage when it is considered in federal court in a week. On Feb. 13, 2014, a federal court judge ruled the Virginia state's ban on same-sex marriage is unconstitutional.
- Wisconsin - AICPA suggests that section 736 payments from partnerships should not be subject to 3.8% surtax on net investment income (NII) in August 1 letter to IRS and Treasury
* These 5 states (Colorado, Illinois, Missouri, Oregon, and Utah) allow same-sex couples who are legally married in other states to file married state tax returns in their state (even though these states do not recognize same sex marriage and Illinois passed legislation to recognize it June 1, 2014, and Utah is in the middle of court rulings on it).
**In Michigan and Pennsylvania, there is no separate rate structure for married couples, but marital status is used in calculating exemptions, taxability of employer-provided healthcare, and so on.
*** In these states (Alabama, Michigan, Mississippi, and Pennsylvania) (and also Arkansas), same-sex marriage is not recognized and there is no conformity between federal and state taxes, so same-sex married couples will have to file as if they were single. Note: Michagan's ban on same-sex marriage was ruled unconstitutional by a federal judge on 3/21/14.
**** This Utah Jan. 15, 2014 guidance allows joint filing for legally married same-sex couples (married in utah or other states), following the IRS ruling treatment. It supercedes the prior Nov. 18, 2013 guidance that is needed to be updated as the Federal court ruled on Dec. 20, 2013 that Utah's prohibition on same-sex marriage is unconstitutional and same-sex marriage licenses started to be issued. As of Dec. 31, 2013 (the date to determine marital status for 2013 taxes), a stay was NOT issued by any judge in this case, so as of Dec. 31, 2013, same-sex marriage was legal in Utah. However, on Jan. 6, 2014, the Supreme Court issued a stay in the case, blocking further same-sex marriages in Utah while state officials appeal the decision that allowed them. On Jan. 8, 2014, "Based on counsel from the Attorney General's Office regarding the Supreme Court decision, state recognition of same-sex marital status is ON HOLD until further notice." said the governor's Chief of Staff Derek Miller in a letter to cabinet officials. On Jan. 10, 2014, the U.S. Attorney has announced that "for purposes of federal law, these marriages (starting Dec. 20, 2013 in Utah) will be recognized as lawful and considered eligible for all relevant federal benefits on the same terms as other same-sex marriages," so federal married returns need to be filed for these couples. On Jan. 15, 2014, the Utah State Tax Commission released the notice of allowing joint filing and posted it on their website.
*****Illinois – Same-sex marriage legal as of June 1, 2014, has allowed civil unions up to now, 2013 filing status provides if treated as spouses for federal income tax purposes, follow the instructions for married couples. If the couple are in a civil union that is not treated as a marriage for federal income tax purposes, Illinois still considers as spouses for Illinois Income Tax purposes. Follow the instructions for civil unions - in Step 1, Line C. (See page 4 of 2013 Illinois individual income tax return instructions.) For further information, see Section 502[c] of the Illinois Income Tax Act).
For more details, see State Taxes and Married Same-Sex Couples, States Provide Income Tax Filing Guidance to Same-Sex Couples, and State Income Tax Filing Requirements.
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