Could same-sex spouses in Connecticut file a joint state income tax return after the 2008 Kerrigan ruling?

Plain-English summary

After the Connecticut Supreme Court's 2008 Kerrigan ruling recognized same-sex couples' right to marry, Attorney General Richard Blumenthal concluded that same-sex spouses had to receive the same state tax treatment as other married couples. They could file a joint Connecticut income tax return even though federal marriage rules then did not allow them to file a federal joint return.

The complication was that Connecticut tax provisions referred to federal filing status. A state civil union statute had already required Connecticut tax law to treat civil union couples as if federal law recognized their union. The AG read that provision to include same-sex marriages after Kerrigan, avoiding unequal state tax treatment. He also recommended legislation to make the statutory text clearer.

Currency note

This opinion was issued in 2008. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Same-sex spouses and tax preparers at the time

For the state return in 2008, the opinion said parties to a same-sex marriage "may file jointly as married couples." It treated the federal filing restriction then in force as a separate issue and interpreted Connecticut law to give those spouses equal state tax treatment.

Revenue officials and legislators at the time

The AG read Conn. Gen. Stat. § 46b-38pp, originally addressing civil unions, to extend to same-sex marriages because a contrary interpretation would conflict with the Connecticut Supreme Court's equal-protection ruling. He recommended that lawmakers revise the tax statutes for clarity and consistency.

Common questions

Q: Could same-sex spouses file a joint Connecticut return after Kerrigan in 2008?
A: Yes. The AG concluded that Connecticut tax law had to accord them the same state treatment as other married couples, including joint filing.

Q: Did the opinion say those couples could file a joint federal return then?
A: No. It described federal law at the time as restricting federal joint filing for same-sex spouses. Its answer concerned Connecticut tax treatment.

Q: Why did a civil union provision matter to married couples?
A: The state provision had addressed the mismatch between Connecticut unions and federal tax law. The AG interpreted it to cover same-sex marriages after the state supreme court's marriage ruling, so the state's tax treatment would remain equal.

Background and statutory framework

The Commissioner of Revenue Services asked how Kerrigan v. Commissioner of Public Health affected state income tax law. The opinion identified Connecticut provisions whose rates, exemptions, and credits depended on federal filing categories. At the time, a federal definition of marriage kept same-sex spouses from filing jointly under federal income tax law.

The AG turned to Conn. Gen. Stat. § 46b-38pp and the state supreme court's equality ruling. He concluded that the provision had to be construed to provide the same state tax treatment to same-sex spouses as to civil union partners and other married couples. The legal setting described in the opinion was specific to 2008.

Citations and references

Statutes cited in the opinion: Conn. Gen. Stat. § 46b-38pp; Conn. Gen. Stat. § 12-700; Conn. Gen. Stat. § 12-701(20).

Cases cited in the opinion: Kerrigan v. Commissioner of Public Health; State v. Cook, 287 Conn. 237, 245 (2008).

Source

• Landing page: https://portal.ct.gov/AG/Opinions
• Opinion page: https://portal.ct.gov/ag/opinions/2008-formal-opinions/honorable-pam-law-commissioner-of-revenue-services-formal-opinion-2008018-attorney-general-state-of

Original opinion text

Honorable Pam Law, Commissioner of Revenue Services, Formal Opinion 2008-018, Attorney General, State of Connecticut

Attorney General's Opinion

Attorney General, Richard Blumenthal

October 28, 2008

Honorable Pam Law

Commissioner of Revenue Services

25 Sigourney Street

Hartford, CT 06106-5032

Dear Commissioner Law:

You have asked for advice with regard to the impact on state tax laws of the Supreme Court’s decision in Kerrigan v. Commissioner of Public Health regarding same-sex marriages. In particular, state personal income tax statutes are tied to a taxpayer’s federal income tax status. An analogous issue previously arose after the enactment of the civil union law, and the legislature addressed the issue by requiring state tax law to be construed as if civil unions were recognized under federal law. See Conn. Gen. Stat. § 46b-38pp. In light of Kerrigan’s holding that same sex couples have the right under our state constitution to marry and be accorded all the rights and benefits of marriage under state law, Conn. Gen. Stat. § 46b-38pp must be construed to accord parties to a same sex marriage the same tax treatment as parties to civil unions or other marriages.

As you know, many of the statutory provisions determining the Connecticut personal income tax are dependent on the taxpayer’s federal filing status. In particular, the rate of personal income tax is determined by whether the taxpayer or taxpayers file a return under the federal income tax as (1) “an unmarried individual or married individual filing separately”; (2) “a head of household”; or (3) “any husband and wife who file a return under the federal income tax . . . as married individuals filing jointly . . . .” Conn. Gen. Stat. § 12-700 (emphasis added). The same distinctions are made for other provisions of the personal income tax, including those relating to the determination of adjusted gross income, id., § 12-701(20), personal exemptions, id., § 12-702, credits based on adjusted gross income, id., § 12-703, and credits for property taxes, id., § 12-704c.

In light of the definition in Federal Defense of Marriage Act that limits “marriage” to “a legal union between one man and one woman as husband and wife,” 1 U.S.C. § 7, there is no question that under federal law a “husband and wife who file a return . . . as married individuals filing jointly” refers to a man and a woman who are married. See 26 U.S.C. § 1. Thus, a same-sex couple married under Connecticut law may not file a federal income tax return as “married individuals filing jointly.”

This issue similarly arose after the enactment of the Connecticut civil union law. Although the legislature’s intent in enacting the civil union law clearly was to afford civil union couples the same legal rights as married couples, state tax statutes are expressly tied to federal filing status. The issue was resolved by legislation. See Conn. Gen. Stat. § 46b-38pp (providing that the state income tax laws “shall apply to parties to a civil union under the laws of this state as if federal income tax law and federal estate and gift tax law recognized such a civil union in the same manner as Connecticut law”).

In Kerrigan, the Supreme Court concluded that, under the Connecticut Constitution, same-sex couples cannot be denied the freedom to marry. Under the court’s reasoning in Kerrigan, treating same-sex marriages differently under the tax laws would violate equal protection principles. We must therefore interpret Conn. Gen. Stat. § 46b-38pp as including same-sex marriages. Parties to a same-sex marriage must be accorded the same tax treatment afforded parties to other marriages, so they may file jointly as married couples. See State v. Cook, 287 Conn. 237, 245 (2008) (statutes must be construed to avoid constitutional infirmities). For the sake of clarity and consistency, we recommend that legislation be sought to revise the statutes to conform to the Supreme Court’s decision in Kerrigan.

Very truly yours,

RICHARD BLUMENTHAL

ATTORNEY GENERAL