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A Tax Trap For Same-Sex Couples Will Snare Others Too

The Internal Revenue Service is prepared to enforce the Defense of Marriage Act when that means charging same-sex couples more. It is apparently not so interested in treating same-sex couples as unrelated taxpayers when that means less money for the government.

A Tax Court judge just gave a boost to the IRS’ approach when she substituted her guess at the tax law Congress meant to write for the law that legislators actually passed.

The result was unfortunate for two California men: Dr. Charles J. Sophy, a well-known psychiatrist, and his domestic partner Bruce H. Voss. They jointly owned a primary residence in Beverly Hills and a vacation home elsewhere in the state, on which they had mortgages and home equity debt totaling around $2.7 million. They paid $180,660 in interest on this debt in 2006, and a similar amount the following year.

Section 163(h)(3) of the Internal Revenue Code allows taxpayers to deduct interest on up to $1 million of debt acquired to purchase, construct or improve a qualifying residence and up to $100,000 of additional home equity debt, which can be used for any purpose. Being separate taxpayers, Sophy and Voss concluded that, in 2006 and 2007, they could each deduct interest payments on up to $1.1 million of debt.

The tax law cuts the limits on deductible debt in half for married couples that file separate returns. But Sophy and Voss were not married; even if they had been, DOMA would have obliged the IRS to treat them as unmarried.

In 2009, however, the IRS announced that the deductible-debt limits are really per residence, not per taxpayer. A residence is defined as “a taxpayer’s principal residence and one other home that is used as a residence by the taxpayer.” So, despite being two separate taxpayers with two residences, Sophy and Voss had only one $1.1 million limit according to the IRS. They each received a letter informing them that the IRS was disallowing part of the deductions on their 2006 and 2007 returns.

Tax Court Judge Mary Ann Cohen recently upheld the IRS position. In her opinion, she argued that the language Congress used to establish the deduction limits was unclear, and that it was therefore her responsibility to construe what the lawmakers meant.

In some of the most tortured legal logic I have read in quite some time, Cohen concluded that Congress meant for the deductions to apply on a per-residence, not a per-taxpayer basis. “From Congress’ use of ‘any indebtedness’ in the definition of acquisition indebtedness, which is not qualified by language regarding an individual taxpayer, it appears that this phrase refers to the total amount of indebtedness with respect to a qualified residence and which is secured by that residence. The focus is on the entire amount of indebtedness with respect to the residence itself.”

I’m not convinced, however, that the statute required such laborious construal. I think the law applies, on its face, to taxpayers. Sophy and Voss were separate taxpayers. If a law’s plain meaning is clear, judges are not supposed to substitute their interpretation of what lawmakers meant to write in place of the law that is actually on the books.

My guess is that what Congress really wanted was to apply the deduction separately to individual taxpayers and jointly to cohabitating couples, which is the same conclusion that Cohen reached. But Congress had no practical way to specifically assign a single deduction to unmarried couples or to couples whose marriages can’t be recognized because of DOMA. And so, it seems, the lawmakers simply addressed married couples.

Congress might have wanted to address all cohabiting couples, but to do so it would have had to define when two people who share the same roof are truly cohabiting. Congress could have achieved such an effect by explicitly writing into law that the limits on deductible mortgage debt would apply on a per-residence basis. Why did it not do this? Nobody can really know, but it is clear that imposing such a limit would have had significant consequences for taxpayers who share a residence without being financially interdependent.

Consider the case of two adult sisters, each with her own family, who happen to be house-hunting at the same time in the same area, each with a $1 million budget. One of them finds a $2 million house with room for both families, perhaps even in separate wings. Both families love the house, and the sisters take out a mortgage, splitting the interest payments evenly, and move in. According to Cohen’s reasoning, simply because they share walls, the two families could deduct only half of their interest payments. This would be the case even though they might just as easily have separately purchased unconnected houses and been able to deduct all of their interest payments.

In the past few years, there has been a dramatic rise in multifamily households. The number of multifamily households, including those with nonrelated roommates, has risen 11.6 percent - to 15.4 million - just since 2008, according to NPR. The growth is not only among the young. The number of people 35 and older living with relatives has risen 36 percent since 2000, while the total number of people in that age range has increased only 14 percent over that time. Of course, much of this increase was due to economic stress, and many new multifamily homes likely have mortgages significantly less than $1 million. But with increasing immigration from places where multifamily and multigenerational homes are common, we can also expect to see a rise in those types of living arrangements at the higher end of the income spectrum.

I suppose that, in attempting to shield multifamily households from the effects of Cohen’s reasoning, the IRS could claim that, when a house is used by two families, it becomes two residences. It could then devise some system for determining when a house is being used as one residence and when it’s being subdivided into multiple, connected “residences.” It might, perhaps, go on the basis of the number of kitchens - though, in that case, avid cooks who like to keep their entrée preparation and pastry confection separate might get an unfair advantage. Most likely, to really know when unmarried taxpayers are sharing a residence in whole versus using it in parts, the IRS would need detailed floor plans and likely also a great deal of information on all of the residents’ habits.

Alternatively, of course, the IRS could just use marriage a rough indicator of when two people are sharing a house, rather than subdividing it. That would be a whole lot easier - though it would mean having to grant separate deductions to same-sex and unmarried couples. By my reading of the law, this is what Congress instructed the IRS to do.

Unfortunately, taxpayers who want to challenge Cohen’s ruling will have a difficult time doing so. Sophy and Voss could take their case to the Ninth U.S. Circuit Court of Appeals. Personally, I would be quite happy if they did. But the extra tax the IRS is trying to collect from them is only around $59,000, which is not necessarily enough to compensate for the time and expense of extended litigation.

As for other taxpayers, now that this adverse Tax Court ruling is out there, there are two options: follow it or reject it. Those who reject it may be subject to IRS penalties unless they provide thorough disclosures in their tax returns, which is pretty much equivalent to sending a “please audit me” request to the IRS. They may also need to pay tax professionals to study the issue to determine it there is a suitable legal basis for the contrary position.

Furthermore, with Cohen's decision as Tax Court precedent, similarly situated taxpayers are likely to lose in that venue. Taxpayers could opt to take their chances in federal district court instead, but this would require them to first pay the tax and then sue the IRS for a refund. District court is also often a more expensive venue in which to pursue a tax case. It is unlikely that there are many people out there who could save more by challenging the ruling than they would have to spend to do so.

So, for the foreseeable future, Cohen’s strained construction of the law is likely to stand. Other house-sharers with hefty mortgages are likely to be caught in this particular tax trap laid by the IRS for same-sex couples in long-term relationships.

Larry M. Elkin is the founder and president of Palisades Hudson, and is based out of Palisades Hudson’s Fort Lauderdale, Florida headquarters. He wrote several of the chapters in the firm’s recently updated book, Looking Ahead: Life, Family, Wealth and Business After 55. His contributions include Chapter 1, “Looking Ahead When Youth Is Behind Us,” and Chapter 4, “The Family Business.” Larry was also among the authors of the firm’s book The High Achiever’s Guide To Wealth.

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