Utah Tax Commission: Same-sex couples may file as married

SALT LAKE CITY — Same-sex couples who file as married on their federal tax returns for 2013 may also file as married on their state income tax returns, the Utah State Tax Commission says.

“Same-sex couples whose marriages were performed in Utah pursuant to the federal district court’s order between Dec. 20, 2013 and Dec. 31, 2013, or whose marriages were solemnized in other states before Dec. 31, 2013, may file individual State income returns as ‘married,’ ” tax commission spokesman Charlie Roberts told FOX 13 News.

The decision, announced Thursday, came after consultation with Governor Gary Herbert’s office and the Utah Attorney General’s Office. However, Roberts said they acted independently.

On Dec. 20, U.S. District Court Judge Robert Shelby declared Utah’s Amendment 3 — which defines marriage as between a man and a woman and refuses to recognize anything else — unconstitutional. An estimated 1,360 same-sex couples obtained marriage licenses until Jan. 6 — when the U.S. Supreme Court granted Utah’s request to halt the marriages, pending an appeal.

After the nation’s top court granted the stay, the governor’s office directed state agencies not to recognize the same-sex marriages. The decision by the tax commission appears to run contrary to it.

“You can look at it and say that, we understand that, but we have to follow the law and Judge Shelby says those marriages should be recognized for 17 days, that was so,” Roberts said. “We feel it’s best to do that.”

The governor’s office also insisted the tax commission’s decision did not run contrary to his directive.

“This is dealing with that window of time between Dec. 20 when the Shelby ruling came down, and Jan. 6 when the Supreme Court stay came down,” said governor’s spokesman Marty Carpenter.

The governor’s office said some state agencies have issued services, based on when they were sought in the window that same-sex marriages were being performed.

“Whatever that point of recognition, whatever your status is at the key moment when you’re applying for an attached benefit, that’s what your status will be,” Carpenter said.

The decision by the Utah State Tax Commission only applies to 2013 tax filings. The commission noted that court decisions could change in the coming year, referencing the appeal of Shelby’s Amendment 3 ruling.

A tax bulletin addressing filing status questions can be found on the Utah State Tax Commission website (tax.utah.gov) or by clicking here [PDF].

In motions seeking a stay, the state claimed that allowing same-sex marriages to continue in Utah created “chaos.” Asked if the tax commission undermined the state’s case in the Amendment 3 appeal, a spokeswoman for Utah Attorney General Sean Reyes said the office is not commenting on another agency’s decision.

Meanwhile, the Utah Attorney General’s Office announced the hiring of outside counsel to help with its appeal of Amendment 3. Gene Schaerr was hired to lead a team of attorneys appealing the decision.

Schaerr, considered an expert in appeals, boasts an 80-percent win rate before the 10th Circuit Court of Appeals. The Utah Attorney General’s Office said he offered his services at a discounted rate — capping his fee for the 10th Circuit appeal at $200,000. He is also working independently of his firm, Reyes’ spokeswoman said.

John Bursch, the former Michigan Solicitor General, and Monte Stewart, who worked on the original Amendment 3, will also work on the appeal.

Stewart agreed to cap his fees at $50,000.

Two lawyers from the Utah Attorney General’s Office have also been assigned to the case.

“It is important for all citizens of Utah to understand that it is the duty of the Attorney General’s Office to defend the State of Utah, its constitution and other laws,” Reyes said in a statement. “Although we recognize that Kitchen vs. Herbert is a potentially divisive case, it is one of national importance and warrants the best possible representation on both sides.”

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