BILL ANALYSIS                                                                                                                                                                                                    



                                                                AJR 29
                                                                Page  1
        CONCURRENCE IN SENATE AMENDMENTS
        AJR 29 (Feuer)
        As Amended  June 29, 2010
        Majority vote
         
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        |ASSEMBLY:  |61-8 |(April 22,      |SENATE: |24-11|(July 1, 2010) |
        |           |     |2010)           |        |     |               |
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         Original Committee Reference:    REV. & TAX.  

         SUMMARY  :  Asks the Internal Revenue Service (IRS) to issue a Revenue  
        Ruling requiring individuals in a same-sex marriage or registered  
        domestic partnership to each report half of their community income  
        on their federal returns. 

         The Senate amendments  delete the Assembly version of this  
        resolution, and instead:

        1)Ask the IRS to defer to California law on the treatment of  
          property belonging to same-sex spouses, so that for tax years  
          beginning after December 31, 2010, when filing separate federal  
          income tax returns, each same-sex spouse must include in his/her  
          gross income one-half of the community's income. 

        2)Request that, for tax years beginning before January 1, 2011, the  
          Revenue Ruling provide that same-sex married couples may, but are  
          not required to, amend their returns to report income in  
          accordance with the Revenue Ruling.  
         
        EXISTING FEDERAL LAW  provides, per IRS Chief Counsel Advice  
        201021050 (2010 Memorandum), that California registered domestic  
        partners (RDPs) should each report one-half of their community  
        income on their federal income tax returns.   

         EXISTING STATE LAW  :

        1)Provides that, as a general rule, all property acquired by a  
          married person during the marriage while domiciled in California  
          is community property.  As a result, a spouse in California who  
          files his/her tax return separately must include in gross income  
          one-half of the combined community income of both spouses.   

        2)Provides that RDPs have the same rights, protections, and  
          benefits, and are subject to the same responsibilities,  








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          obligations, and duties under law, whether they derive from  
          statutes, administrative regulations, court rules, government  
          policies, common law, or any other source of law, as are granted  
          to and imposed upon spouses. 

        3)Requires RDPs who file separate income tax returns to each report  
          one-half of the combined community income earned by both domestic  
          partners, as spouses do, rather than their respective individual  
          incomes for the taxable year.

         AS PASSED BY THE ASSEMBLY  , this resolution:

        1)Contained multiple findings and declarations noting, among other  
          things, that:

           a)   On February 24, 2006, the IRS issued a memorandum (2006  
             Memorandum) indicating that an individual who is a RDP in  
             California must report all of his/her income earned from the  
             performance of his/her personal services, notwithstanding the  
             California Domestic Partner Rights and Responsibilities Act of  
             2003; and, 

           b)   For federal income tax purposes, California RDPs may not  
             claim a community property interest in the income of both  
             partners, but instead have to report all of each RDP's income  
             separately, without reference to the income of the other  
             partner. 

        2)Asked the IRS to reconsider the 2006 Memorandum and to issue a new  
          memorandum based on the fact that settled federal law acknowledges  
          the state's role in defining property rights.

        3)Requested that, consistent with established legal precedents, the  
          IRS defer to California law on the treatment of property belonging  
          to RDPs and same-sex spouses, including the existence of community  
          property, so that when filing separate federal income tax returns,  
          each RDP and same-sex spouse should include in his/her gross  
          income one-half of the community's income. 

         FISCAL EFFECT  :  Unknown

         COMMENTS  :  The author has provided the following statement in  
        support of this resolution:

             This measure seeks equal federal tax treatment for  
             same-sex couples.  Specifically, it asks the IRS to issue  








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             a binding Revenue Ruling that for federal income tax  
             purposes, California registered domestic partners and  
             same-sex married couples must claim a community property  
             interest in the income of both partners, instead of  
             reporting all of each partner's income separately without  
             reference to the other partner's income.  

             Prior to the [2010 Memorandum], for federal income tax  
             purposes both California registered domestic partners and  
             same-sex spouses were required to report their incomes  
             separately and without reference to each other, and could  
             not claim a community property interest in their incomes.  
              As a result, in cases where partners or spouses were in  
             different tax brackets, the partners would pay more in  
             federal taxes.  This faulty interpretation of the law was  
             set forth in an IRS Memorandum from February 24, 2006.   
             Now that California registered domestic partners must,  
             for federal income tax purposes, claim community property  
             rights in their income under the [2010 Memorandum], this  
             measure seeks the same treatment for California same-sex  
             spouses.

        Committee Staff Comments:

        1)Community Property Income:  In community property states like  
          California, property that spouses acquire during their marriage is  
          generally regarded as owned by them together, with each owning an  
          undivided interest in the whole property.  Similarly, income from  
          the property is divided equally between them.  While each state  
          has different rules for classifying income as either separate or  
          community property, under the general rule, salaries, wages, and  
          other compensation for the services of either spouse are  
          considered community income.  Thus, if a married couple residing  
          in a community property state files separate returns, one-half of  
          the community income must be reported by each spouse.

        2)Treatment of RDPs under California Law:  Existing law provides  
          that RDPs have the same rights, protections, and benefits, and are  
          subject to the same responsibilities, obligations, and duties  
          under law, whether they derive from statutes, administrative  
          regulations, court rules, government policies, common law, or any  
          other source of law, as are granted to and imposed upon spouses.   
          This includes community property rights.  Thus, RDPs who file  
          separate income tax returns must each report one-half of the  
          combined income earned by both domestic partners, as spouses do,  
          rather than their respective individual incomes for the taxable  








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          year. 

        3)The 2006 Memorandum:  On February 24, 2006, the IRS's Office of  
          Chief Counsel issued a memorandum addressing the manner in which  
          the California Domestic Partner Rights and Responsibilities Act of  
          2003 is to be taken into account in computing the federal income  
          tax of a RDP.  Specifically, the 2006 Memorandum addressed the  
          question of whether a California RDP is required to include in  
          gross income all of his/her earned income or one-half of the  
          combined income earned by the RDP and his/her partner.  The 2006  
          Memorandum concluded that a California RDP must report all of  
          his/her income earned from the performance of his/her personal  
          services.  In reaching this conclusion, the 2006 Memorandum  
          acknowledged that, in 1930, the United States Supreme Court held  
          that a married couple in Washington was entitled to file separate  
          returns, each treating one-half of the community income as his/her  
          respective income.  Poe v. Seaborn, 282 U.S. 101 (1930).  (See  
          also United States v. Malcolm, 282 U.S. 792 (1931), which applied  
          the holding in Poe v. Seaborn to California's community property  
          regime.)  Nevertheless, the 2006 Memorandum concluded, with little  
          explanation, that, "The relationship between [RDPs] under  
          [California law] is not marriage under California law.  Therefore,  
          the Supreme Court's decision in Poe v. Seaborn does not extend to  
          [RDPs]."
         
         4)The 2010 Memorandum:  On May 28, 2010, the IRS's Office of Chief  
          Counsel issued a new memorandum reversing the position taken in  
          the 2006 Memorandum.  Specifically, the 2010 Memorandum noted:
         
              By 2007, California had extended full community property  
             treatment to registered
             domestic partners.  Applying the principle that federal law  
             respects state law property
             characterizations, the federal tax treatment of community  
             property should apply to
             California registered domestic partners.  Consequently, for tax  
             years beginning after
             December 31, 2006, a California registered domestic partner  
             must report one-half of the
             community income, whether received in the form of compensation  
             for personal services
             or income from property, on his or her federal income tax  
             return. 
              
         5)What Would This Joint Resolution Do?:  This resolution asks the  
          IRS to issue a Revenue Ruling applying the legal analysis and  








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          conclusions of the 2010 Memorandum to both California RDPs and  
          same-sex married couples.  As the author states, "The IRS Chief  
          Counsel Advisory issued on May 28, 2010 deferred to California  
          community property law and granted equal federal tax treatment to  
          California registered domestic partners filing separately, but was  
          silent as to treatment of same-sex married couples.  A CCA may not  
          be cited as precedent.  By contrast, an IRS Revenue Ruling  
          establishes a precedent.  This resolution requests a Revenue  
          Ruling that requires both California registered domestic partners  
          and same-sex married couples to report one-half of the community  
          income on each of their federal income tax returns."  


        Analysis Prepared by  :    M. David Ruff  / REV. & TAX. / (916)  
        319-2098                FN: 0005123